text:
    PAUL SELLERS v. STATE.
    No. A-10928.
    Nov. 24, 1948.
    (200 P. 2d 444.)

      Turner M. King and Carloss Wadlington, both of Ada, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Lewis A. Wallace, Asst. Atty. Gen., for defendant in error.
   BRETT, J.

Plaintiff in error, Paul Sellers, defendant below, was charged, tried, convicted by a jury, and sentenced to serve two years in the penitentiary for the crime of second degree burglary, allegedly committed on November 28, 1946.

The jury based its verdict upon a state of facts as briefly hereinafter set forth. The record discloses that George Weeks was doing some work at his filling station on a Lobaugh trailer and truck for Mr. Kingery, who was in possession of the truck, by virtue of a lease from Mr. H. L. Stone, the owner. In effecting the repairs, it was necessary that he remove two of the rims, tires and tubes from the wheel, the tires being 9.00 x 15, an exceptionally odd size. The evidence adduced at the trial established the tires, tubes and rims were worth approximately $200. The evidence discloses, shortly before Mr. Weeks closed up his establishment, defendant, Paul Sellers, and Billy Joe Adams were seen in the filling station and in the room where the said tires were then stored. The next morning the tires were gone. A closed window in the filling station had been raised and fresh mud was deposited on the window sill. The filling-station was otherwise closed and locked np. A search was made for the tires and they were later found hidden under some hay in a barn back of residence where Paul Sellers had formerly resided. The tires were identified by George Weeks and Mr. H. L. Stone, the owner, and returned to the latter. Billy Joe Adams testified for the state and corroborated other witnesses for the state to the effect that he and Paul Sellers had been in the filling station prior to the time it was closed on the day in question. He further testified that he was not in the filling station after it was closed for the night. He said, thereafter and about 7 or 7:30 p.m., while he was in Ray Lloyd Benton’s place adjoining the filling station, the defendant, Paul Sellers, asked him to load some tires in a car in possession of the defendant, Sellers, and which Sellers had parked nearby. He identified the tires that he helped load as being two 9.00 x 15 truck tires together with tubes and rims. He said he helped load the tires and he and Sellers took them to a barn located at Portland Park back of the house where Sellers formerly lived. Upon arrival at this place he said he and Sellers unloaded the tires and hid them in the barn under the hay. He positively denied that he had entered the filling station after the same was closed on the night in question. Moreover, he testified he did not know where Sellers got the tires, but stated positively that Sellers said he got them out of the filling station. Other evidence offered by the state through other witnesses corroborated the testimony of Billy Joe Adams to the effect that Paul Sellers was driving his brother’s automobile the night in question. This evidence disclosed that there were three smooth tires and one good tire on the Sellers’ automobile. The tire tracks at the barn where the tires were unloaded corroborated Billy Joe Adams’ testimony to the effect that this car was used. The state’s witnesses testified that the automobile used to transport the tires to the barn was one that had three smooth tires and one good tire on it. Other corroborative evidence was to the effect that the stolen tires and rims had been unloaded in the mud near the barn and in dropping them to the ground one of them had left an impression in the mud, leaving a truck tire mark of Firestone imprinted in the mud. This mark left in the mud corresponded with the Firestone mark on the truck tire found under the hay in the barn. Moreover, this evidence established that Paul Sellers and Billy Joe Adams were seen together at Ray Lloyd Benton’s place the night of the burglary adjacent to the filling station. To this evidence the court correctly overruled defendant’s demurrer.

On this state of the record defendant contends that Billy Joe Adams was an accomplice, and that the evidence is insufficient for the reason that Billy Joe Adams’ testimony was not corroborated. With this contention we cannot agree. The reason is apparent upon the face of the record. The defendant alone was charged with the burglary of the filling station wherein the tires were stored. There is not one line of evidence in the record which reveals that Billy Joe Adams was in any way involved in the burglary, that is, the breaking and entering as defined in Title 21 O.S. 1941 § 1435, the essential element to a burglary conviction. The record does disclose that after the burglary had been committed apparently by raising a window and thereby gaining entrance into the filling station, the defendant, Paul Sellers, asked Billy Joe Adams to help him load the tires; that upon being asked so to do Billy Joe Adams then assisted in disposing of the stolen tires, tubes and rims. The record discloses that Billy Joe Adams testified that the defendant, Paul Sellers, told him he got the tires out of the filling station. This evidence stands uncontradicted or unexplained by the defendant. The record establishes the act of burglary was completed without his knowledge and before Billy Joe Adams participated in the disposal of the property. Admittedly, the evidence discloses that he admitted only that he thought the tires were stolen when he participated in the asportation of them from outside of the filling station to the barn where he and Paul Sellers hid them under the hay. Since the witness Billy Joe Adams is not charged jointly in this action with Paul Sellers, it is not necessary for us to pass upon his liability in this case or to surmise upon which of the bases he might be charged because of his participation in the asportation of the tires after the burglary had been committed. This is not an issue herein. Our conclusion in this regard is sustained by the case of Lasley v. State, 46 Okla. Cr. 179, 287 P. 1055, wherein this court under a similar circumstance held:

“In a prosecution for larceny a person who was not present and did not participate in the taking or asportation of the property stolen nor aid and abet therein but who subsequent thereto with guilty knowledge that it was stolen property, aided in the disposition and concealment of same by transporting it into another county is not an accomplice of the thief.”

This authority is therefore decisive of the issue as to Billy Joe Adams being an accomplice to the burglary such as to require corroboration. Billy Joe Adams therefore not being an accomplice, his testimony required no corroboration and standing alone is sufficient to make out a prima facie case. See Smith v. State, 62 Okla. Cr. 33, 69 P. 2d 671, 672:

“The term ‘prima facie evidence’ as used in the statute is that degree of proof, which unexplained or uncon-tradicted is alone sufficient to establish the unlawful intent if it be credited by the jury.”

Except for the admission that Paul Sellers made to Billy Joe Adams as to where he obtained the tires, the evidence is circumstantial but it is nevertheless sufficient úpon which to sustain this conviction, as was said in James v. State, 66 Okla. Cr. 462, 92 P. 2d 973:

“One may be convicted of burglary upon circumstantial evidence, the same as upon direct evidence.”

See, also, Chesser v. State, 63 Okla. Cr. 84, 85, 73 P. 2d 191.

Moreover, the evidence of Billy Joe Adams as to the admission of Paul Sellers, to the effect that he got the tires out of the filling station, standing alone and un-denied by the defendant, together with the other circumstances revealed by the evidence, was a fact to be determined by the jury and which within their province they resolved against the defendant. In this conclusion we are supported by James v. State, supra, wherein this court said:

“The finding of recently stolen property in the possession of a defendant is a circumstance to be taken into consideration by the jury, together with the other facts and circumstances in the case.”

See, also, Highfill v. State, 73 Okla. Cr. 93, 118 P. 2d 263, wherein this court said:

“The mere possession of property recently stolen is not sufficient to convict the possessor of larceny or burglary of it. But when this possession is unexplained and is supplemented with other facts inconsistent with the idea that the possession is honest, it then becomes a question of fact for the jury to pass upon the guilt or innocence of the defendant.”

Under the law the jury resolved these issues against the defendant and therefore his contention that the evidence is insufficient upon which to support a conviction is without merit.

Next, the defendant contends that the county attorney committed reversible error in arguing the case to the jury. This contention is predicated upon the proposition that in his argument the county attorney said:

“That the possession of recently stolen property is a circumstance of guilt and insofar as there being any explanation as to that, the record is as silent as a tomb.”

The defendant argues that said remarks of the county attorney constitute reversible error in that said statement amounted to comments upon the defendant’s failure to take the witness stand. In support of this contention defendant relies upon the following cases: Shepherd v. State, 77 Okla. Cr. 131, 139 P. 2d 605; Sturgis v. State, 2 Okla. Cr. 362, 102 P. 57; Brown v. State, 3 Okla. Cr. 442, 106 P. 808; Weinberger v. State, 8 Okla. Cr. 441, 128 P. 160; Zedda v. State, 30 Okla. Cr. 348, 235 P. 939; Kinder v. State, 48 Okla. Cr. 124, 289 P. 796; Shelton v. State, 49 Okla. Cr. 430, 295 P. 240; Bell v. State, 55 Okla. Cr. 439, 32 P. 2d 747; Davis v. State, 65 Okla. Cr. 306, 86 P. 2d 65; Rice v. State, 66 Okla. Cr. 434, 92 P. 2d 857. The foregoing cases will support the proposition that it is error to comment upon the defendant’s failure to testify as a witness in his own behalf, but such is not the situation involved in the case at bar. The case at bar is coyered by the rule announed in Presnell v. State, 71 Okla. Cr. 162, 109 P. 2d 834, 835, wherein this court said:

“The statement by the county attorney in his argument to the jury that, ‘The witness, Deehan, who is now deceased, in his testimony identified this defendant, and that has not been denied or contradicted by any one in this case,” held not a comment upon the failure of the defendant to testify as a witness on his own behalf, within the meaning of Sec. 3068, O.S. 1931, 22 Okla. St. Ann. § 701.”

In Chesser v. State, supra, this court said [63 Okla. Cr. 84, 73 P. 2d 192] :

“Statements of the prosecuting attorney, in argument to the jury, ‘Why couldn’t they contradict the state’s testimony, but not one place do they do that,’ and ‘I say again there is no evidence offered to contradict the state’s evidence in this case,’ held, not a comment upon the failure of the defendant to testify ais a witness in his own behalf, within the meaning of section 3068, St. 1931 (22 Okla. St. Ann. § 701).”

See Parker v. State, 34 Okla. Cr. 254, 246 P. 493, and Murrell v. State, 34 Okla. Cr. 413, 246 P. 644, wherein the county attorney in his argument said:

“ ‘The officers testified that the defendant stated at the time of his arrest, “You know that ain’t my whisky”; it hasn’t been denied.’ ”

And the court held that such a statement was not within the provisions of Title 22 O.S. 1941, § 701, providing, in substance, that the defendant’s failure to testify in his own behalf shall not create any presumption against him nor be mentioned on the trial and that if the same is mentioned shall be grounds for a new trial. In view of these authorities, we, therefore conclude that the remarks of the county attorney were not erroneous but constituted legitimate comment upon the state of the record, and cannot be regarded as comment upon the defendant’s failure to testify in his own behalf.

Finally, defendant complains that the court erred in giving oral instructions in addition to Ms written instructions as revealed by the proceedings hereinafter set forth. The record discloses that the foreman stated to the court:

“By the Foreman of the Jury: If the court will tell us a little more about what common sense is we might be able to arrive at a verdict.”

And thereafter the following proceedings were had thereupon:

“By the Court: Is that in the instructions? By the Foreman: No, in the trial. By the Court: I don’t know, Mr. Wright, just what you have reference to there or whether you are discussing the force of these instructions here, or not and in rereading one of these instructions I want to say that in reading these instructions, or in discussing any of the instruction, you fellows in deciding this case are not to take any one instruction without considering them as a whole. By Mr. King: We want to interpose an objection to all comment that is being made by the jury to the court at this time. By the Court: All right. By Mr. King: And to any comment of the court. By the Court: All right, let the record so show. I am going to reread one of these instructions:”

Thereupon the court proceeded to reread instruction No. 11:

“ ‘You are the sole judges of the facts proven in this case and of the credibility of the witnesses who have testified before you, and of the weight and value to be given their testimony. In considering and weighing the evidence for the purpose of determining the facts in this case, you should use your common sense, your observation, your knowledge of human nature and human motives, and your experience in human affairs. In determining what credit you will give to the testimony of a witness, you may take into consideration the interest of the witness, if any, in the result of this trial, the reasonableness or the unreasonableness of his or her statements; the apparent truthfulness of a witness or want of it, his means of knowing the facts about which he testifies, his manner of giving testimony; whether or not the witness has been impeached, and the conduct and demeanor of the witness on the stand. All these matters being taken into account by you, together with all the other facts and circumstances in evidence before you, it is your province and your duty to give to each witness such credit, and the testimony of such witness such weight and value as you believe it should have.’ Now, Gentlemen, I don’t believe that I can state that any more clearly to you than as stated in these Instructions — ”

Thereupon the following proceedings were had in connection with the foreman’s statement:

“By Mr. King: I don’t think the court should— By the Court: Now, you can state your objections when I get through; I will let you make your record on this but I don’t dare to be interrupted. You must consider the instructions as the law of the case. You have the highest province of anybody in-the world — nobody can determine the guilt or innocence of this person except you people based upon the evidence that comes from the witness stand. You are a representative group of citizens I know because you have been selected by men who I selected to obtain a representative group of citizens to serve-on this jury, and I think you should go back and deliberate for awhile longer on this matter and I will send you back for awhile, at least. Now go back in custody of the bailiff for further deliberation under the admonitions which 1 told you awhile ago. By Mr. King: Let the record show that the Defendant takes exceptions to all comment of the Court to the jury at this time.”

We are of the opinion that the oral instruction thus given did not alter the written instructions given and were not confusing to the jury and, therefore, the same does not constitute reversible error. In this connection, see Coatney v. State, 52 Okla. Cr. 70, 2 P. 2d 604:

“Where oral explanations by the court are made which do not materially alter the written instructions, and which have no tendency to confuse the jury, the verdict will not be disturbed.”

To the same effect is Walters v. State, 45 Okla. Cr. 429, 283 P. 1033 and Bird v. State, 22 Okla. Cr. 263, 210 P. 925. In this connection, however, in the latter case the court called attention to the fact that while the same may not constitute reversible error, instructions partly in writing and partly oral should be avoided for the reason that such practice is likely to be confusing both to the jury and to the appellate court charged with passing upon their sufficiency. We, therefore, suggest that as far as it is possible oral instructions be avoided. In addition to the foregoing, the written instructions not being confusing to the jury, we are of the opinion that the same were not prejudicial to the rights of the defendant.

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

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


source: Caselaw Access Project

author: BAREFOOT, P. J.

license: Public Domain

text:
    JAMES A. CRISP v. STATE.
    No. A-11119.
    Nov. 24, 1948.
    (200 P. 2d 453.)
    Joe A. Smalley, of Norman, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., Sam H. Lattimore, Asst. Atty. Gen., and James Hester, County Atty., Cleveland County, of Norman, for defendant in error.
   BAREFOOT, P. J.

Defendant, James A. Crisp, was sentenced by the district court of Cleveland county to serve a term of four years in the State Penitentiary at McAlester, upon his plea of guilty to a charge of grand larceny. The value of the property alleged to have been stolen was $5.50 in cash, and “one Nastrix watch of the value ofj|40.00”.

Defendant appealed from the judgment and sentence. Not being able to make bond pending his appeal, he is now confined in the State Penitentiary. An order was entered by this court advancing the case, and the same was submitted after being set for hearing on November 10, 1948.

The only question presented on appeal is that the judgment and sentence should be modified from a term of four years to a term of one year in the State Penitentiary.

It is contended that at the time defendant agreed to enter a plea of guilty, be had an agreement with the assistant county attorney of Cleveland county, who made the investigation and had charge of the prosecution of the case against this defendant, that if defendant would enter his plea of guilty, the assistant county attorney would recommend to the district judge that a sentence of one year in the penitentiary be given defendant.

The record reveals that the assistant county attorney of Cleveland county was not present at the time of the arraignment of defendant, nor at the time he entered his plea of guilty. It is also disclosed by the record that defendant was not represented by counsel at the time of entering his plea of guilty.

After defendant had been sentenced to the State Penitentiary for a period of four years, he employed counsel to appeal his case to this court, and the appeal was duly filed. Affidavits of the assistant county attorney and of the district judge who sentenced defendant have been filed, by agreement, as a part of the record in this case. These affidavits are as follows (omitting the caption and jurat) :

“Justin Hinshaw, of lawful age, being first duly sworn, on oath states:
“That he is the District Judge in and for Cleveland County, State of Oklahoma, and was the presiding Judge at the time James A. Crisp entered a plea of guilty in cause No. 3834 in the district court of Cleveland County, state of Oklahoma; that at the time said defendant entered his plea of guilty, affiant was not aware nor was he informed that the assistant County Attorney had advised defendant that a recommendation of one year would be made upon the entering of a plea of guilty in this cause; that since said sentence was passed, the affiant has been informed that the defendant entered a plea of guilty under the belief that a recommendation would be made that he be sentenced to a year and,a day in the State Penitentiary; that under the circumstances. set forth above, the affiant is of the opinion that the sentence rendered in said cause was excessive and should be modified accordingly.
“Further affiant sayeth not.
“Justin Hinshaw, District Judge.”
“David Taylor, of lawful age, being first duly sworn, on oath states:
“That he was the assistant County Attorney in and for Cleveland County, Oklahoma, at the time the above cause was filed in the District Court of Cleveland County against the defendant herein; that he had several conversations with the defendant, James A. Crisp during the time he was being held in the county jail, Cleveland County, Oklahoma, pertaining to this charge; that he advised Mr. Crisp, during these conversations, that if a plea of guilty was entered in this cause he would recommend to the Court that he be sentenced to one year in the penitentiary; that thereafter, before the defendant Avas arraigned in the District Court, affiant made á trip to California on official business and while he was out of the State, the defendant was arraigned in the District Court and entered his plea of guilty.
“He further states that he did not advise the District Judge nor the County Attorney of these conversations with Mr. Crisp, and the District Court was not aware that a plea of guilty was entered by the defendant under the belief that he would be sentenced to one year in the State Penitentiary.
“Further affiant sayeth not.
“David W. Taylor.”

After reading these affidavits, and an examination of the record, we are of the opinion that justice demands that the judgment and sentence in this case should be modified from a term of four years in the State Penitentiary at McAlester, to,a term of one year in the State Penitentiary.

It is so ordered.

JONES and BRETT, JJ., concur.


author: BRETT, J.

text:
    Ex parte DOYLE FRANKS.
    No. A-11152.
    Dec. 1, 1948.
    (200 P. 2d 778.)
    Doyle Franks, pro se.

      Mac Q. Williamson, Atty. Gen., and Sam H. Latti-more, Asát. Atty. Gen., for respondent.
   BRETT, J.

This is an original proceeding brought by the petitioner, Doyle Franks, for a writ of habeas corpus seeking his release from the State Penitentiary at McAlester, Okla., wherein he is restrained of his liberty by O. P. Burford, warden thereof. Petitioner says he is now being detained in the State Penitentiary under and by virtue of proceedings had in two case No. 2720, Greer County, Oklahoma, for the crime of escaping from the Reformatory located at Granite, Oklahoma, and in case No. 2721, wherein he was charged with larceny of domestic animals, to wit, a horse, upon which he made his said escape. In case No. 2720 he entered his plea of guilty and was sentenced to a term of two years. In case No. 2721 he likewise entered a plea of guilty and received a sentence of three years, said sentences to run concurrently with each other. Title 21 O.S.A. 1941 § 443, together with the title, reads as follows, to wit:

“§ 443. Escape from State Penitentiary or State Reformatory — Punishment.—
“Any prisoner in either the State Penitentiary or State Reformatory sentenced thereto who escapes from such prison, either while confined therein, or while permitted to be at large as a trusty, is punishable by imprisonment in such prison for a term not less than two (2) years or more than seven (7) years.” Laws 1939, p. 6, § 1, as amended Laws 1943, p. 83, § 1.

The pertinent part of Title 21 O.S.A. 1941 § 1716, larceny of domestic animals, reads as follows, to.wit:

“Any person in this State who shall steal any horse, * * * shall be guilty of a felony and upon conviction shall be punished by confinement in the State Penitentiary for a term of not less than three years, nor more than ten years; * *

The petitioner contends that the sentence in case No. 2721, larceny of domestic animals, is unjust and contrary to law in that the attempted'escape was sought to be perpetrated upon a horse of which he had custody as a trusty for the reason that the animal was never removed from within the bounds of state-owned property, traded, sold or presented to anyone by the petitioner, and that, in consequence of the right accorded said petitioner to use said animal, petitioner says that the alleged theft of the animal was and constitutes a subterfuge as the means of imposing an additional and excessive sentence upon a single crime, that of escaping from the Reformatory, and that such attempt constitutes double jeopardy in violation of the petitioner’s rights.

From an examination of the judgment and sentence rendered in cases Nos. 2720 and 2721, it appears that at the time the judgment and sentence was imposed the petitioner was then before the court on charges involving subject matters over which the court had jurisdiction, and that the judgment and sentence pronounced was within the limits of the law. The court thus having jurisdiction of the subject matter, and authority under the law to render the judgment and sentence, the same is, therefore, not void. In Ex parte Mayberry, 78 Okla. Cr. 366, 148 P. 2d 785, we said that the inquiry in habeas corpus is limited to a determination of those questions. See Ex parte Cannes, 77 Okla. Cr. 71, 138 P. 2d 561, certiorari denied, Cannes v. State of Oklahoma, 64 S. Ct. 44, 320 U.S. 764, 88 L. Ed. 456, wherein this court said it would not look beyond the judgment and sentence of any court of competent jurisdiction as to mere irregularities of procedure or errors of law on questions over which the court has jurisdiction, and that, the writ of habeas corpus cannot issue to correct such errors of law or irregularities in proceedings before the trial court. Ex parte Drake, 87 Okla. Cr. 255, 197 P. 2d 308; Ex parte Tollison, 73 Okla. Cr. 38, 117 P. 2d 549; Ex parte Cannes, supra; Ex parte West, 62 Okla. Cr. 260, 71 P. 2d 129; Ex parte Keel, 62 Okla. Cr. 277, 71 P. 2d 313; Ex parte Dunn, 33 Okla. Cr. 190, 242 P. 574; Ex parte Darr, 84 Okla. Cr. 352, 182 P. 2d 523; Ex parte Stover, 14 Okla. Cr. 120, 167 P. 1000; Ex parte Vanderburg, 73 Okla. Cr. 21, 117 P. 2d 550. Furthermore, we have repeatedly held, the writ of habeas corpus is limited to cases where the judgment and sentence of the court attacked are clearly void. Ex parte Drake, supra; Ex parte Walker, 84 Okla. Cr. 190, 180 P. 2d 670; Ex parte Darr, supra; Ex parte Tollison, supra; Ex parte West, supra; Ex parte Keel, supra; Ex parte Dunn, supra; Ex parte Grant, 32 Okla. Cr. 217, 240 P. 759; Ex parte Hollingshead, 24 Okla. Cr. 131, 216 P. 486.

It is apparent upon its face that the petitioner herein seeks to substitute the writ of habeas corpus for an appeal to correct an error of law, in a case where he pleaded guilty, his contention being based upon his own ex parte statement of facts to the effect that the sentence in cause No. 2721 was a mere subterfuge constituting double jeopardy, and therefore compelling him to endure excessive punishment. In this connection, in Ex parte Vanderburg, supra [73 Okla. Cr. 21, 117 P. 2d 551], we said:

“Where an accused entered his plea of guilty to a felony, the question as to whether the punishment imposed is excessive will not be determined in a habeas corpus proceeding. Such question is properly a matter to be determined by appeal.”

Such .relief cannot be bad in habeas corpus. This court has repeatedly held that habeas corpus may not be substituted for an appeal. Ex parte Drake, supra; Ex parte Broyles, 84 Okla. Cr. 47, 178 P. 2d 652; Ex parte Darr, supra; Ex parte Mayfield, 84 Okla. Cr. 158, 179 P. 2d 934; Ex parte Walker, supra; Ex parte Robinson, 56 Okla. Cr. 404, 41 P. 2d 127; Ex parte Thomas, 56 Okla. Cr. 258, 37 P. 2d 829; Ex parte Barnette, 29 Okla. Cr. 80, 232 P. 456; Ex parte Talley, 4 Okla. Cr. 398, 112 P. 36, 31 L.R.A., N.S. 805; In re Sullivan, 82 Okla. Cr. 364, 170 P. 2d 260; Ex parte Miller, 82 Okla. Cr. 315, 169 P. 2d 574.

Looking at the judgment and sentence herein complained of, it appears that the court had jurisdiction of the person, subject matter, and authority under the law to pronounce the judgment and sentence imposed, and that the same is, therefore, not void. It further appears that the petitioner seeks to obtain relief against alleged errors and irregularities of proceedings not affecting the jurisdiction of the court and which can be reached by appeal only and not by habeas corpus. We are, therefore, of the opinion that the writ should be and the same is hereby denied.

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


text:
    HERBERT LANCASTER v. STATE.
    No. A-11029.
    Dec. 1, 1948.
    (200 P. 2d 768.)
    Herbert Lancaster, pro se.

      Mac Q. Williamson, Atty. Gen., Sam H. Lattimore, Asst. Atty. Gen., and Tannell A. Shadid, County Attorney, Noble County, of Perry, for defendant in error.
   BAREFOOT, P. J.

The defendant, Herbert Lancaster, was charged in the district court of Noble county with the crime of passing a bogus check after previous conviction of felonies; was tried, convicted by a jury, sentenced to serve a term of 15 years in the State Penitentiary, and has appealed.

The original information was filed on October 27, 1947, and charged the defendant with having, on September 6, 1947, issued a bogus check to the J. C. Penny Company, Perry, Oklahoma, in the sum of $25, purchasing-merchandise in the value of $11.86 and receiving the balance in cash. The information charged that defendant had been previously convicted in the district court of Noble county, Oklahoma, of the crime of larceny of an auto: mobile, and sentenced to serve a term of five years in the State Penitentiary, case No. 645; and that on the same date, in the same court, case No. 646, he was convicted of the crime of larceny of an automobile, and sentenced to serve a term of five years in the Penitentiary; and charging that the offense complained of constituted a second and subsequent violation of the law. The judgment in case No. 646 provided that the sentence begin at the expiration of the sentence in case No. 645.

On October 27, 1947, defendant was arraigned and entered his plea of not guilty. On November 20, 1947, the court appointed counsel for the defendant; and on December 3 the state was given permission to amend the information by adding thereto a statement that the defendant had been convicted in the district court of Garfield county on July 22, 1946, of the crime of attempting to obtain merchandise by nse of a bogus check, and sentenced to serve a term of one year in the State Penitentiary. The case was tried on December 10, 1947, the trial resulting in the jury returning a verdict of “guilty of the crime of passing a bogus check to J. C. Penny Company after former conviction of felonies,” and leaving the punishment to be assessed by the court.

Motion for new trial was duly filed and overruled, and the defendant, on December 15, 1947, was by the trial court sentenced to serve 15 years in the State Penitentiary, as above stated. Defendant gave notice of appeal, filed a pauper’s oath, and the court ordered the case-made prepared at the expense of Noble county. Defendant filed the case-made in this court, without the aid of counsel, and we have considered his letter to the clerk as a petition in error, and have given careful attention to the grounds set out in his motion for new trial.

From the evidence it appears that the defendant had been working for a pipeline construction company at Perry, and worked on Friday, September 5. According to his own testimony he started drinking “a little beer and a little whisky” at 9 or 10 o’clock on Saturday morning, September 6, and continued to drink beer and liquor through the day.

The evidence discloses that about 7 o’clock in the evening .defendant purchased certain Work clothing, amounting to $11.86 from the J. C. Penny Company, gave them a check for $25, and received the difference in cash. About 6 o’clock that evening, he issued a check for $15 to “Kraemers,” having purchased some work gloves etc., and received some cash in change. Between 6 and 7 o’clock he purchased two pairs of khaki pants from “Zorba’s” in Perry, issued a check for $10, and received $4 in change; and in the afternoon of the same day he purchased three of four dollars worth of groceries from the Royal Food Market, gave them a check for $10, and received the change. On Saturday night defendant purchased some clothing at “The Famous” in Perry, gave a check for $20, and received some change.

All these checks were drawn on the First National Bank of Perry. A ledger sheet from the Bank was introduced in evidence, showing all of the transactions of the defendant with the Bank during the year 1947. This statement shows that on August 13, 1947, defendant deposited $10.25, and on August 14, withdrew $10. On August 18 he deposited $15, and on August 21 withdrew $15. On August 21 the Bank entered a service charge of 25<f, which closed his account, but on August 25 defendant deposited $15, and on August 26 the Bank cashed his check for $15. These were the only transactions defendant had with the First National Bank of Perry during the year.

Defendant admitted the prior convictions, and that he had served three terms in the State Penitentiary therefor. He admitted that he knew his bank account was “flat” at the time he issued the checks on Saturday afternoon and evening, but stated that he had intended to make a deposit Monday morning before the checks had time to get to the Bank. He did not have the money to take care of the checks, which amounted to about $80, but intended to make arrangements for the same.

Defendant testified that about 11 or 11:30 on Saturday .night he hired a taxicab and went to Enid, and that he was pretty drunk at that time. He was drinking again in Enid on Sunday, and was picked up by the police in Enid for being drunk about 11:30 Sunday night, and placed in jail. On Monday morning he asked the officers for permission to make a telephone call to Perry, stating that he wanted to call his brother and ask him to take up the checks which he had issued on Saturday night. He told the chief of police about writing the checks, and that he had to make arrangements to take care of them. The chief of police called the sheriff of Noble county, who went to Enid and got the defendant about 1 o’clock Monday afternoon.

A brother of defendant testified in his behalf, and stated that he had offered to make restitution of the checks. He testified that he told the county attorney that the family would be together on Thanksgiving Day, and that he would call right after that time, and let him know what they could do about the checks; that the defendant had been in jail about 90 days at the time of the trial, and he had been to see him two times. The witness admitted that the county attorney told him to go around and take up the checks, and that he had not done so.

In his motion for new trial, defendant contends, first “That the. court erred as a matter of law in admitting over the .objection of the defendant evidence of other acts which were not set out in the charge against said defendant and against which the defendant had not been given notice to make a defense and which were highly prejudicial to the rights of said defendant”; and second: “That the verdict rendered in this case is contrary to the evidence and was obviously rendered out of prejudice of the defendant’s past record.”

Defendant objected to the introduction of the evidence concerning the other checks issued by the defendant on the same day. The jury was excused, the matter argued to the court, and tbe objection overruled.

The general rule is that in a prosecution for one crime, it is not proper to admit testimony against the defendant tending to connect him with the commission of other offenses, for the purpose of establishing his guilt of the offense charged. However, there is an exception to the general rule which is well settled in this jurisdiction, and that is, that such evidence is competent and admissible when it tends to establish a systematic scheme or plan so related that the proof of one tends to establish the other. Reniff v. State, 53 Okla. Cr. 448, 13 P. 2d 592; Boyer v. State, 68 Okla. Cr. 220, 97 P. 2d 779; Chappell v. State, 74 Okla. Cr. 213, 124 P. 2d 742; Byers v. State; 78 Okla. Cr. 267, 147 P. 2d 185.

Here the checks introduced were all'issued within a few hours, and at a time defendant knew he had no money in the bank. In Reniff v. State, supra, this court said:

“It is also argued that the court erred in admitting testimony of other offenses. There was testimony that defendant at about the same time under similar circumstances passed several other forged checks in the same manner as the check, and for approximately the same amount in this case. This was admitted under the well-settled rule that proof of other offenses of similar character, and near in point of time, is relevant and admissible to show a system of criminal action and the knowledge and intent of the accused and to show the act charged Avas not an inadvertence.”

We are of the opinion that evidence of the issuance of other checks by the defendant, under similar circumstances, and on the same date, was relevant to the issue, and was not inadmissible by reason of the fact that it would tend to prove appellant guilty of offenses other than that charged in the information. It was clearly admissible for the purpose of proving guilty knowledge or the intent with which the act charged was committed. They were acts of the appellant in a continuous series of transactions and were precisely of the same character as the act for which he was being tried. It may be regarded as settled that where the offense charged is so connected with the other offenses sought to be proved, evidence of the latter may be given to show the character of the former. It follows that the court did not err in its ruling in the admission of the evidence objected to.

Defendant’s second ground for new trial was that the verdict rendered was contrary to the evidence, and rendered out of prejudice of the defendant’s past record.

Defendant was charged and prosecuted under 21 O.S. 1941 § 1541, which is as follows:

“Every person who, with intent to cheat and defraud, shall obtain or attempt to obtain from any person, firm or corporation, any money, property, or valuable thing, of the value of Twenty ($20.00) Dollars, or less, * * * or by means or use of any false or bogus checks, * * * shall be guilty of a misdemeanor * * *. If the value of the money, property or valuable thing referred to in the preceding paragraph, be more than Twenty ($20.00) Dollars, any person convicted hereunder shall be deemed guilty of a felony and shall be punished by imprisonment in the State Penitentiary, for a term not exceeding seven (7) years, or by a fine not to exceed Five Hundred ($500.00) Dollars or by both such fine' and imprisonment. The term ‘false or bogus check’ shall include checks or orders given for money or property which are not honored on account of insufficient funds of the maker to pay same, as against the maker or drawer thereof, the making, drawing, uttering or delivering of a check, draft or order, payment of which is refused by the drawee, shall be prima facie evidence of intent to defraud and the knowledge of insufficient funds in, or credit with, such bank or other depository; provided, such maker or drawer shall not have paid the drawee thereof the amount dne thereon, together with the protest fees, within five days from the date the same is presented for payment; and, provided, further, that said check or order is presented for payment within thirty days after same is delivered and accepted.”

No attempt was made by the defendant to take up the checks he had issued, although he was returned to Noble county on Monday, following the issuance of the checks on Saturday. 21 O.S. 1941 § 51, provides:

“Every person who, having been convicted of any offense punishable by imprisonment in the penitentiary, commits any crime after such conviction, is punishable therefor as follows:
“1. If the offense of which such person is subsequently convicted is such that upon a first conviction an offender would be punished by imprisonment in the penitentiary for any term exceeding five years, such person is punishable by imprisonment in the penitentiary for a term of not less than ten years. * * *”

The court’s instructions fully covered the statutes, and the punishment that could be assessed against the defendant. The minimum punishment that this defendant could have received was ten years, but the court saw fit to assess his punishment at 15 years in the State Penitentiary.

This court has often announced that it will give every consideration to an appeal filed by an inmate of the penitentiary without aid of counsel. We have carefully read and examined the record in this case — the information, the evidence, the rulings and instructions of the court. The information is in proper form; the trial court appointed able counsel to represented the defendant, and this counsel took every precaution to protect the rights of the defendant. The instructions of the court fully protected Ms rights, and fairly presented the issues to the jury for determination. No exceptions were taken to the instructions.

Finding no reversible error in this case, the judgment of the district court of Noble county is affirmed.

JONES and BRETT, JJ., concur.


author: JONES, J.

text:
    ETHEL STORY v. STATE.
    No. A-10932.
    Dec. 1, 1948.
    (200 P. 2d 774.)

      A. O. Manning, of Fairview, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Lewis A. Wallace, Asst. Atty. Gen., for defendant in error.
   JONES, J.

The defendant, Ethel Story, was charged in the county court of Major county with the illegal possession of intoxicating liquor, was tried, convicted by a jury who returned the following verdict:

“We the jury drawn, empaneled and sworn in the above entitled cause, do upon our oath find defendant Ethel Story guilty, we recommend leniency.”

The trial court thereafter sentenced the defendant to serve 30 days in the county jail and pay a fine of |50 and costs, and she has appealed.

It is first argued that the trial court erred in refusing to give an instruction on circumstantial evidence. An instruction on circumstantial evidence was submitted to the court by the defendant with the request that it be given.

In order to properly consider this assignment of error, it is necessary that the evidence be. reviewed.

The defendant lived in the town of Fairview. At the time of the seizure of the whisky in controversy, her premises were occupied by Pat Topley, Harry Sweet, Ruth Moorehead and her children, and the defendant and her 15 year old grandson.

Homer Compton, deputy sheriff, testified that the defendant’s grandson called him over the telephone about 4:30 p.m. and asked him to come to Ethel Story’s house as quickly as he could get there; that he immediately drove to the house where the first person he saw was Pat Topley; that he went on around the house and saw the defendant and her grandson wlio were crying, and Homer Sweet was there trying to qniet them down. The officer inquired as to the trouble and the defendant asked her to take Pat Topley off the premises; that Pat and defendant were quarreling and defendant ordered Pat to leave; that Pat Topley was drunk; that defendant did not want to sign a complaint against Topley but finally said she would sign a complaint and the officer took him to jail; that Pat started talking to him and told him there was plently of whisky there on the place and told him where it was; that he procured a search warrant, went back and searched the premises and found the liquor buried in a haystack. The officer then testified that he had a conversation with Mrs. Story in which she said that it was Pat’s whisky; that it had been her money, but Pat had invested it in whisky.

The officer then testified:

“Q. From your conversation with Mrs. Story, you know to whom the whisky belonged? A. From the conversation, it was hers. She said it was her money that bought the whisky. Q. Where did you find this whisky? A. Out by the alfalfa hay bales. Q. Where is that relative to the house? A. Northeast of the house. Q. How far from the house? A. 100 feet or less. Q. On the same premises? A. Yes, sir.”

The witness testified that Topley had severely beaten the defendant and her grandson before he arrived and the witness called a Doctor who came to her home and administered to her.

Harold Wiley testified that he was the sheriff of Major county and assisted in making the search of the premises where defendant lived; that various other persons also lived on these premises. The officer, after testifying that he went to the house, further testified:

“Q. Who did you find there? A. Ethel Story, lying on the bed, Harry and the boy. Q. Did she tell you anything about any whisky, that was there? A. She told me it was Pat’s whisky. Q. Did she say whether or not she was going to file charges against Pat? A. I never talked about that; after we made the search, we went back in and talked with her about Pat, she was going to file charges against him. Q. She was sick at the time? A. She was lying down. Q. Now, Mr. Wiley, did you know how many others were living on these premises at that time? A. Yes, what I heard. Q. Harry Sweet was there? A. Yes, sir. Q. Pat Topley was there? A. Yes, sir. Q. Mrs. Story told you at the time you first went there that it was Pat’s whisky. A. That is right.”

On cross-examination, he further testified:

“Q. In searching for this liquor, she said it was Pat’s whisky? A. Yes, sir. Q. She told you to get Pat away and also his stuff? A. Yes, sir. Q. She said for him to be locked up? A. Yes.”

The sheriff further described the various buildings on the premises where the search was made which included the house occupied by the defendant, a two room apartment house occupied by Ruth Moorehead and her children, a chicken house, a cow barn, and a garage operated by Harry Sweet where Pat Topley was also employed as a mechanic. The liquor in question was found by the officers in an old milk can buried under the hay near the cow barn.

The defendant testified in her own behalf that she owned the premises which were searched by the officers; that Pat Topley roomed and boarded with her, fed and milked her cows and worked in the garage with Harry Sweet repairing cars; that on the day of the incident in question, Pat Topley came to her house in a drunken condition; that she scolded him and asked him where he got his liquor; that he told her he had some hidden in the hay; that she had told him not to bring any liquor on the place, and after her fuss with him on that occasion ordered him to get off her premises and stay off; that she started to call the sheriff, at which time she was struck by Topley and knocked to the floor; that in a few minutes, the officers arrived and she directed them to take Pat Topley off the premises. She specifically denied owning the whisky or having anything to do with it.

On cross-examination, when asked as to whether she told one of the officers that it was her money but Pat’s whisky, she answered:

“A. I might have told him that, as I had been loaning Pat money, from time to time, which he had not paid back, it was money that he had borrowed from me.”

Harry Sweet testified that he had a repair shop on defendant’s premises where he overhauled automobiles and did carpentry work; that Pat Topley worked on a commission in the garage with him; that on September 9, 1946, Pat was in an intoxicated conditon and he overheard a conversaton between Mrs. Story and Pat, with reference to some liquor; that he heard the defendant tell Pat to get the liquor and get off the place and not come back. He was there when the officers made the search. He was then asked.

“Q. Whose liquor was that. A. Pat Topley’s.”

It is well settled that where a case depends entirely on circumstantial evidence, the court should direct the jury to acquit the defendant, unless the circumstances exclude every other reasonable hypothesis save that of the defendant’s guilt. Riley v. State, 40 Okla. Cr. 135, 267 P. 494; Matthews v. State, 8 Okla. Cr. 676, 130 P. 125; Ritter v. State, 84 Okla. Cr. 418, 188 P. 2d 257.

It has been held that a confession of guilt is direct evidence, and where one charged with crime makes a confession of gnilt, it is not necessary to give an instruction on circumstantial evidence. Dennard v. State, 83 Okla. Cr. 286, 176 P. 2d 831.

However where the statement by the defendant does not amount to a confession of guilt, but is an admission of fact that would tend to incriminate defendant, such admission is circumstantial evidence only, and where all the other evidence is circumstantial, it becomes incumbent upon the trial court to properly instruct the jury on circumstantial evidence.

As we view the record, the evidence against the accused is wholly circumstantial and the trial court erred in refusing to give the defendant’s requested instruction on circumstantial evidence.

The case is therefore reversed and remanded for new trial.

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


text:
    FRANK BURTON v. STATE.
    No. A-10947.
    Dec. 8, 1948.
    (200 P. 2d 772.)
    Falkenstine & Fisher, of Watonga, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Lewis A. Wallace, Asst. Atty. Gen., for defendant in error.
   JONES, J.

The defendant, Frank Burton, was charged in the district court of Blaine county with the crime of burglary in the second degree, second offense, was tried, convicted and- sentenced to serve five years in the State Penitentiary, and has appealed.

The Attorney General has filed a motion to dismiss the appeal in which it is alleged that subsequent to the conviction in the district court of Blaine county, and while the appeal was pending in this court, the defendant committed the crime of forgery in the second degree, and thereafter, on March 15, 1948, the defendant entered a plea of guilty to said charge of forgery and was sentenced to serve a term of two years imprisonment in the State Penitentiary; that on March 19, 1948, the said defendant, Frank Burton, escaped from the county jail of Custer county at Clinton while awaiting transportation to the State Penitentiary and has not been recaptured, his whereabouts are unknown, and the said Frank Burton has been a fugitive from justice at all times since March 19, 1948, and is therefore unable to appear and respond to any judgment that may be rendered against him on appeal by this court.

A copy of said motion to dismiss was served upon the attorneys for the defendant. Thereafter, the matter came on for hearing before this court, at which time the Attorney General introduced evidence in support of his motion to dismiss and no response was filed to the motion to dismiss and no evidence was introduced on behalf of defendant to refute the allegations of the motion to dismiss.

The Criminal Court of Appeals prefers to determine cases upon their merits and is reluctant to dismiss an appeal for any cause. For that reason, the motion to dismiss the appeal was taken under advisement until a period of five months has now elapsed. The defendant is still a fugitive and it is apparent that he will not appear to respond to the judgment of this court if the appeal is decided against him.

In tbe case of Kuykendall v. State, 82 Okla. Cr. 228, 168 P. 2d 142, it is stated:

“Where defendant has been convicted and sentenced and perfects an appeal, Criminal Court of Appeals will not consider his appeal unless the defendant is where he can he made to respond to any judgment or order it . may render and enter in the case.”

In Kilpatrick v. State, 71 Okla. Cr. 125, 109 P. 2d 514, 515, this court stated in the body of the opinion:

“In Bryce v. State, supra, (14 Okla. Cr. 456, 172 P. [976], 977), this court said: ‘Persons convicted of crime in courts of record within this state have a right to appeal to this court, but such appeals must be taken in the manner and under the conditions provided by law. The right to supersede a judgment of conviction by the giving of an appeal bond cannot be considered by appellants as a license to roam at large pending such appeal * * Evinger v. State, 35 Okla. Cr. 12, 247 P. 416.
“While there is no express provision of the statute authorizing the dismissal of the appeal on the grounds stated, yet, in the absence of a statute to the contrary, it has been held to be a matter within the discretion of the court whether, under the facts and circumstances admitted, we will consider and determine the appeal. When the defendant left the state he was in the attitude of a fugitive from justice, and thereby waived the right to have his conviction reviewed. We do not think it would subserve the ends of justice to permit a person convicted of crime, enlarged on bond pending the determination of his appeal, to violate the conditions of his bond with impunity. Augusta Earl Herring, alias Earl Herron, alias George Wilson v. State, 71 Okla. Cr. 69, 108 P. 2d 193; Taylor v. State 27 Okla. Cr. 356, 227 P. 905; Burden v. State, 24 Okla. Cr. 60, 215 P. 1076; Webster v. State, 18 Okla. Cr. 183, 193 P. 431; Bryce v. State, 14 Okla. Cr. 456, 172 P. 976.”

The proof submitted in support of the motion to dismiss the appeal having affirmatively shown that the defendant is a fugitive from justice, it is our opinion that defendant has waived his right therefore to have his appeal considered and determined. The motion of the state to dismiss the appeal is, therefore, sustained and the appeal is hereby dismissed.

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


text:
    Ex parte JAMES PIERCE.
    No. A-11142.
    Dec. 8, 1948.
    (200 P. 2d 777.)
    James Pierce, pro se.
    Mac Q. Williamson, Atty. Gen., and Sam H. Latti-more, Asst. Atty. Gen., for respondent.
   BAREFOOT, P. J.

The petitioner, James Pierce, who is now confined in the State Penitentiary at Mc-Alester, has filed in this court an instrument which he denominates “Petition for Mandamus”; alleging that he is now serving a sentence rendered by the district court of Pittsburg county for the crime of escaping from prison; and that upon completion of such sentence, he will be detained and imprisoned to serve two sentences rendered by the district court of G-reer county, Okla., one for two years and the other for five years, to run concurrently. He asks that this court issue a restraining order in the form of a writ of mandamus, in order that the two cases from Greer county may be reviewed. No evidence was introduced at the time the matter was set on the rule to show cause; but petitioner attaches copies of the two judgments rendered in Greer county to his petition.

The record discloses that this petitioner, on January 20, 1943, commenced serving a sentence of three years assessed by the district court of Okfuskee county for the crime of grand larceny. While serving this sentence, and on July 21, 1943, petitioner escaped from the' penitentiary at McAlester, and as a result of being at large, was sentenced by the district court of Pontotoc county to serve a term of five years for stealing an automobile, and by the district court of Pittsburg county to serve two years on an escape charge.

After being returned to the penitentiary, petitioner was transferred from the penitentiary at McAlester to the State Reformatory at Granite, and subsequently, in 1944, escaped from the Reformatory. He was sentenced by the district court of Greer county on October 20, 1944, to serve a term of two years for escaping from the Reformatory, and in another ease for five years for theft of a motor vehicle.

On November 26, 1944, petitioner was discharged in the Okfuskee county case, and on that date started serving the five-year sentence rendered in the Pontotoc county case for theft of automobile. He completed that sentence on September 16, 1947, and on the same day started on the two-year escape sentence rendered in Pittsburg county. He will have completed serving that term on or about December 10, 1948, and is now faced, with the two terms from Greer county, the one for two years to run concurrently with the five-year sentence. The two sentences pronounced in Greer county provide that they commence “from and after expiration of present sentence which he is now serving”, being the two-year escape sentence from Pittsburg county.

The petition, filed by petitioner in his own behalf, is also in the nature of a brief; and it is contended that the district court of Greer county did not have the right to sentence petitioner for the crimes committed by him while he was an escapee from the State Reformatory, for the reason that he had been sentenced to serve his term at the State Penitentiary, and that he was illegally held at the Reformatory.

In support of this proposition, petitioner refers to an order made by the district court of Pittsburg county, and attaches a copy of the order. This order grants a writ of habeas corpus, and orders the discharge of a prisoner, reciting that “no legal cause being shown for such imprisonment and restraint.” None- of the facts in that case are shown, and we know of no rule by which this court would be bound by the ruling of a district court, on a question of law under the facts here presented.

We are also unaware of any law that would prohibit the district court of Greer county from entering sentence for the crimes committed by this petitioner while he was held in the State Reformatory, or while he was an escapee from the Reformatory.

It is provided'by 21 O.S. 1941 § 61, as follows:

“When any. person is convicted of two or more crimes before sentence has been pronounced upon him for either, the imprisonment to which he is sentenced upon the second or other subsequent conviction, must commence at the termination of the first term of imprisonment to which he shall be adjudged,- or at the termination of the second or other subsequent term of imprisonment, as the case may be.”

And 22 O.S. 1941 § 976 provides:.

“If the defendant have (has) been convicted of two or more offenses, before judgment on either, the judgment may be that the imprisonment upon any one may commence at the expiration of the imprisonment upon any other of the offenses.”

See, also, the case of Ex parte Halbert, 45 Okla. Cr. 167, 282 P. 478, and Ex parte Olden, 88 Okla. Cr. 56, 199 P. 2d 228.

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

JONES and BRETT, JJ., concur.


text:
    Ex parte FRED CUSTER.
    No. A-11149.
    Dec. 8, 1948.
    (200 P. 2d 781.)

      Fred Custer, pro se.
    Mac Q. Williamson, Atty. Gen.', and Sam H. Latti-more, Asst. Atty. Gen., for respondent.
   BRETT, J.

This is an original proceeding in ha-beas corpus brought by petitioner, Fred Custer, pro se, without the aid of counsel, complaining that he is unlawfully restrained of his liberty by C. P. Burford, warden of the State Penitentiary at McAlester, Okla. This court assumes a liberal attitude in construing petitions in habeas corpus filed by inmates of the penitentiary without the advice or assistance of attorneys. Ex parte Walker, 84 Okla. Cr. 190, 180 P. 2d 670.

The verified petition, information, judgment and sentence are sufficient to show the court’s lack of jurisdiction to invoke the penalty imposed. Briefly, the petition alleges that the petitioner was charged under Title 63 O.S.A. 1941 § 417, as a first offender, with attempting to obtain by fraud narcotics in violation of the said statute. It further alleges to this charge he entered a plea of guilty, and that upon this plea he was sentenced to three years in the penitentiary, and that the sentence thus imposed is void. The reason given for this contention is that the sentence is contrary to, and in excess of the plain provisions of Title 63 O.S.A. 1941 § 420, the pertinent part thereof reading as follows, to wit:

“Any person violating any provision of this Act shall upon conviction be punished, for the first offense, by a fine not exceeding One Thousand ($1,000.00) Dollars, or by imprisonment for not exceeding two (2) years, or by both such fine and imprisonment, * *

An examination of the information, judgment and sentence of the court confirms the petitioner’s allegation that he was charged as a first offender, and therefore could only be sentenced to a maximum of two years in the penitentiary. The principal question which the case presents is, does this defect in the judgment and sentence constitute such an irregularity or error as to divest the court of jurisdiction? The answer to this question must be in the affirmative. In Ex parte Massengale, 67 Okla. Cr. 181, 93 P. 2d 41, 42, this court said:

“The scope of review on habeas corpus is limited to an examination of the jurisdiction of the court whose judgment of conviction is challenged.”

The essential elements to rendering a valid judgment in a criminal case is jurisdiction of the person, subject matter, and authority under the law to pronounce the judgment and sentence imposed. A proceeding in ha-beas corpus is limited to a determination of these questions. Ex parte Mayberry, 78 Okla. Cr. 366, 148 P. 2d 785; Ex parte Matthews, 85 Okla. Cr. 173, 186 P. 2d 840; Ex parte Gee, 84 Okla. Cr. 439, 183 P. 2d 603; Ex parte Goff, 87 Okla. Cr. 33, 194 P. 2d 206; Ex parte Bailey, 87 Okla. Cr. 406, 198 P. 2d 660, and many other cases. All three elements must be present to constitute a valid judgment. This court has held that the jurisdiction of the court to render a particular judgment and sentence by which a person is imprisoned is a proper subject of inquiry on habeas corpus and the remedy of habeas corpus is available whenever it is found that the court in which the petitioner was convicted was without jurisdiction to render the judgment. Ex parte Massengale, supra. Furthermore, in Ex parte McClure, 6 Okla. Cr. 241, 118 P. 591, 593, this court said:

“A judgment of conviction and sentence must conform to the punishment prescribed, and be enforced in conformity with the statute.
“Jurisdiction to render the particular judgment and sentence imposed is as essential to its validity as jurisdiction of the person and the cause.”

This being the law it is apparent that the court was without jurisdiction to impose a three year sentence when the maximum provided for by statute was only two years. In the body of the opinion in Ex parte Wagner, 58 Okla. Cr. 161, 50 P. 2d 1135, 1140, the foregoing rule was followed and this court in quoting from In re Bonner, 151 U.S. 242, 14 S. Ct. 323, 326, 38 L. Ed. 149, said:

“ ‘ “The laws of our country take care, or should take care, that not the weight of a judge’s finger shall fall upon any one, except as specifically authorized. * * *” ’ ”

In Ex parte Wagner, supra, this court said:

“Jurisdiction to render a particular judgment and sentence is as essential as jurisdiction of the person and subject-matter. If the first does not exist, the sentence is void.”

It therefore clearly appears that under the facts herein presented the judgment and sentence of the district court of Washita county is void as being beyond the court’s authority to impose. It might be argued that it is void only as to the excess, and that the action by habeas corpus is prematurely brought and the petitioner should be' required to serve the first two years thereof before attacking the balance thereof as invalid, but this would not be true since the judgment and sentence is an entire sentence unauthorized by law. In United States v. Pridgeon, 153 U.S. 48, 62, 14 S. Ct. 746, 751, 38 L. Ed. 631, it was said:

“A sentence is legal so far as it is within the provisions of law and the jurisdiction of the court over the person and offense, and only void as to the excess, when such excess is separable, and may be dealt with without disturbing the valid portion of the sentence.”

See State v. Reed, 138 Minn. 465, 466, 163 N.W. 984.

Such a situation would exist where the court unlawfully imposed fines in addition to a prison sentence where the latter alone was authorized, Ex parte Ellerd, 71 Tex. Cr. 285, 158 S.W. 1145, Ann. Cas. 1916D, 361; or where the court imposed the payment of costs in excess of its jurisdiction, Wallace v. White, 115 Me. 513, 99 A. 452, 29 C.J. § 50, p. 59, Note 7, 39 C.J.S., Habeas Corpus, § 26. Here we have no separable sentence but one in entirety or rather as a unit, unauthorized by law and, therefore, void. Ex parte Kelly, 65 Cal. 154, 3 P. 673, at page 674:

“Now, the judgment is a unit, and if one portion of it is without the jurisdiction of the justice the judgment is void. We see no authority in this court, on this proceeding, to hold a portion of a judgment surplusage, because not authorized by law, to exscind such portion from the judgment and order what remains to be carried into execution. The judgment must be passed on as a whole, and if any material portion of it is in excess of the jurisdiction of the court, the judgment is void.” 29 C.J. § 50, p. 60, Note 12; 39 C.J.S., Habeas Corpus, § 28.

The judgment therefore being void in toto the action for habeas corpus could rightfully be brought at any time after its rendition but there is a pressing reason why the relief should be granted now; Not to grant it now would materially affect petitioner’s right to apply for a parole or a reduction of sentence under the provisions of Title 57 O.S.A. 1941 § 332.7, as follows, to-wit:

“Upon completion of one-third (%) of the sentence of any person confined in a penal institution in the State of Oklahoma such person shall be eligible for consideration for a parole, and it shall be the duty of .the Pardon and Parole Officer, with or without application being-made, to cause an examination to be made at the penal institution where the person is confined, and to make inquiry into the conduct and the record of the said person during his confinement in said penal institution, and thereafter said Pardon and Parole Officer shall report to the Pardon and Parole Board his findings, which shall be considered as a basis for consideration of said person for recommendation to the Governor for parole.”

To hold that petitioner could not now maintain his application for habeas corpus under the record presented herein would require the petitioner to serve more than one-third of a lawful sentence of two years before being eligible for the benefits of the foregoing statute. Such is not in keeping with the intent or purpose of the law. O’Brien v. McClaughry, 8 Cir., 209 F. 816, 126 C.C.A. 540; Connors v. Pratt, 38 Utah, 258, 112 P. 399; 39 C.J. S., Habeas Corpus, § 26, Note 29; 29 C.J. p. 59, Note 10 (a). Petitioner’s application is therefore not prematurely brought and under the facts the writ must be granted. But that does not mean the petitioner is entitled to his discharge. This court said in Ex parte Lyde, 17 Okla. Cr. 618, 191 P. 606;

“The holding in this case that the proceedings in rendering judgment and passing sentence were void only affects the judgment and sentence, and leaves the verdict and all precedent proceedings in full force and effect. The petitioner is therefore remanded to the custody of respondent pending the rendition of judgment in conformity with law and in accordance with the verdict of conviction.”

See, also, Ex parte Meadows, 70 Okla. Cr. 304, at page 320, 106 P. 2d 139, citing In re Bonner, supra; Ex parte Robnett, 69 Okla. Cr. 235, 101 P. 2d 645, 647; Ex parte Smith, 150 Okla. 98, 300 P. 635; and Howington v. State, 30 Okla. Cr. 243, 235 P. 931.

In keeping with the foregoing authorities it is therefore ordered that the petition for a writ of habeas corpus be and the same is hereby granted, affecting only the judgment, sentence and commitment which are hereby directed to be vacated and set aside, leaving the plea of guilty and all preceding proceedings in full force and effect. And, it is further ordered that the petitioner be remanded to the custody of the sheriff of Washita county, Oklahoma, pending the rendition of judgment in accordance with the provisions of Title 63 O.S.A. 1941 § 417 and § 420 which the district court of Washita county is directed so to do.

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


text:
    Ex parte FRED CUSTER.
    No. A-11149.
    March 2, 1949.
    (203 P. 2d 889.)
    For former opinion, see 88 Okla. Cr. 154, 200 P. 2d 781.
    Fred Custer, pro se.
    Mae Q. Williamson, Atty. Gen., and Sam H. Latti-more, Asst. Atty. Gen., for respondent.
   BRETT, J.

It appearing that heretofore and on December 8, 1948, 88 Okla. Cr. 154, 200 P. 2d 781, this court rendered its opinion in the above styled and numbered matter, wherein it was ordered that the petitioner, Fred Custer, be remanded to the custody of the sheriff of Washita county, Oklahoma, pending rendition of judgment in accordance with the provisions of Title 68, O.S.A. 1941 §§ 417, 420. Said order was made and entered for the reason that in pronouncing judgment and sentence the aforesaid provisions of the statutes had not been followed and the petitioner had been sentenced to serve a term in the penitentiary one year in excess of the two years provided by law, and said judgment was therefore void.

It further appears that since the rendition of said opinion the authorities of Washita county have made no effort to execute the order of this court for return of the said Fred Custer, the petitioner, for proper judgment and sentence, and the court is informed the said Washita county authorities do not desire to incur the expense incident to the procedure necessary for the pronouncement of a valid sentence; and it further appearing that in the early part of April, 1949, the petitioner -will have served the maximum of two years as provided by law, and having been prejudiced in his rights as to application for parole, because of said excessive sentence, is entitled to his immediate release under said writ of habeas corpus heretofore granted. The warden of the State Penitentiary should be and is hereby ordered and directed to release the said petitioner from his custody, subject of course to any holds that might be pending against him. Mandate forthwith.


author: BBETT, J.

text:
    Ex parte JESSE McINTOSH.
    No. A-11167.
    Dec. 15, 1948.
    (201 P. 2d 258.)

      Welch, Bounds & Kile, of Hugo, for petitioner.
    Mac Q. Williamson, Atty. Gen., and Sam H. Latti-more, Asst. Atty. Gen., for respondent.
   BBETT, J.

The petitioner, Jesse McIntosh, was charged by verified complaint with the crime of robbery with firearms before Honorable Carl Prewitt, county judge of McCurtain county, Oklahoma, sitting and acting as examining magistrate; and on the 3rd day of November, 1948, after preliminary hearing, petitioner was bound over without bond to the district court where he now stands charged by information on said charge.

Thereafter, and on the 5th day of November, 1948, said Jesse McIntosh having made application to the district court for a writ of habeas corpus -for admission to bail and upon hearing the same said application was by the court denied. Thereafter, and on the 5th day of November, 1948, application was made to the district court of McCurtain county for leave of Sheriff C. H. Roan to transport the petitioner to the State Penitentiary at Me-Alester for safekeeping and in order that proper facilities for medical aid and treatment might be provided for the petitioner pending his trial in the district court of Mc-Curtain county, Okla. On the hearing of said application by evidence and stipulation of the parties, it appeared that Jesse McIntosh is addicted to the use of narcotics and that he is suffering with acute tuberculosis. It appeared further to the court that the facilities of the county' jail of McCurtain county, Okla., are totally inadequate to properly care for the said Jesse McIntosh while therein confined and awaiting trial. It further appeared that adequate facilities are available at the penitentiary for giving the said Jesse McIntosh proper medical care and treatment as well as to safely keep him until his appearance is demanded for trial in McCurtain county. Thereupon the said court ordered C. H. Roan, sheriff of McCurtain county, Okla., to immediately transport said Jesse McIntosh to McAlester, Okla., and to ■ deliver him to the warden of the State Penitentiary at McAlester, Okla., for safekeeping and care pending trial.

In his petition for a writ of habeas corpus herein, petitioner first contends that his guilt is not evident, nor the presumption thereof great, and, second, that his physical condition is such that his health will be seriously impaired and death will probably result from confinement in either the penitentiary where he is now confined or the county jail of McCurtain county, and that under the facts he is unlawfully restrained and entitled to be admitted to bail pending trial to answer said charge of robbery with firearms. The transcript of the evidence taken before Honorable Carl Prewitt, county judge and committing magistrate, is introduced as evidence herein. It reveals an aggravated case of robbery with firearms of Dr. H. W. Williamston and his wife at Idabel, Okla. Briefly the defendant and his accomplice broke into Dr. Williamston’s home some time after 2 o’clock on the morning of September 25, 1948, beat Dr. and Mrs. Williamston into a state of temporary unconsciousness with an automatic pistol. After awhile, Dr. Williamston regained consciousness and was forced to open his safe and deliver over to the defendant and accomplice $1,800 in cash and approximately $1,200 worth of jewelry. Thereafter, the petitioner put pillow cases over their beads, tied them up, threatening to kill them and otherwise misused and abused them. The petitioner was later identified by Dr. Williamston as a former - patient of his.

At the hearing before this court it was further made to appear that Jesse McIntosh was formerly convicted of ' robbery in the State of Oklahoma in 1925, in 1935 was • convicted of violating the Narcotic Act, and in 1944 was • convicted of the crime of robbery with firearms in Lamar - county, Texas.

The state agreed that the petitioner was at the pres- ■ ent time afflicted with an acute case of tuberculosis.

Without passing upon the first question raised by the defendant, to the effect that proof of the guilt of the defendant is not evident or the presumption thereof ' great, we are of the opinion that under the law as here: tofore announced by this court the defendant would be • entitled to bail, because of the condition of his health,, which might be aggravated by long and continued confinement in jail, or terminate fatally. Ex parte Wilcox, 64 Okla. Cr. 405, 81 P. 2d 671; Ex parte Watson, 1 Okla. Cr. 595, 99 P. 161; Ex parte Smith, 2 Okla. Cr. 24, 99 P. 893; In re Fraley, 4 Okla. Cr. 91, 111 P. 662; Ex parte Emma Rivers, 9 Okla. Cr. 720, 131 P. 1197. But at the hearing had before this court it was made to ap-' pear that there will probably be a special sitting of the district court of McCurtain county in December, 1948, at which time the defendant will probably be tried, and it further appearing that counsel for the defendant expressed himself as desiring a speedy hearing on said matter, this court is of the opinion that under the record herein, the petitioner’s present confinement in the penitentiary until at least January 1, 1949, would not further • impair the petitioner’s health or endanger his life, but that in the event trial is not had by January 1, 194)9, petitioner should be granted bail.

Therefore, because of the nature of the charge pending against the petitioner, this court, on November 12, 1948, made and entered its order denying the application for bail upon express condition that petitioner’s case be tried before January 1, 1949, and further provided that if petitioner’s case be not set for trial before January 1, 1949, or if set for trial and the cause is postponed through no fault of the defendant, then in said event the district- court of McCurtain county was directed to fix a reasonable bond for said petitioner. In keeping with said order the writ is denied, and the district court of McCurtain county, Okla., is ordered and directed in the event of a denial of trial prior to January 1, 1949, to comply with the order as above stated.

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


text:
    Ex parte RICHARD PAPPE.
    No. A-11139.
    Dec. 15, 1948.
    (201 P. 2d 260.)

      Louis Y. Woodruff, of Kingfisher, Whitten & Whit-ten, of Oklahoma City, for petitioner.
    Shutler, Shutler & Bradley, of Kingfisher, for respondent.
   JONES, J.

This is an original action in habeas corpus instituted by the petitioner, Richard- Pappe, Jr., to secure his release from confinement in the city jail of the city of Kingfisher.

In the verified petition: it is alleged that on July 4, 1948, the petitioner was charged with selling beer for consumption on the premises of seller between the hours of 1:40 p.m. and 9:30 p.m., contrary to the provisions of Ordinance No. 444 of the city of Kingfisher, Oklahoma; that said ordinance is null and void, contrary to and conflicting with the laws of the State of Oklahoma. Petitioner further alleged that on August 28, 1948, his case came on for trial and that the evidence introduced affirmatively showed that the liquid which he sold at the time in question did not have an alcoholic content in excess of 3.2 per cent by weight; that on September 20, 1948, the court rendered judgment, finding petitioner guilty of violating the provisions of Ordinance No. 444 of the city of Kingfisher, assessed a fine of $20 and in default of payment of said fine, further committed the petitioner to the city jail until such fine was paid at the rate of $1 per day for each day served in the jail. The petitioner further alleged that said fine was not paid and he was taken into custody by the chief of police and placed in the city jail where he is now unlawfully restrained of his liberty.

A copy of the city ordinance in question is attached to the petition. This ordinance prohibits the selling or. giving away of beer either in draught, bottles or cans between 12:00 a.m. on Sunday and 6:00 a.m. on Monday of each week for consumption on the premises of the seller or donor.

A rule to show cause was issued and a hearing held before this court, at which time the issues were presented upon a stipulation of facts signed by the interested attorneys. This stipulation in substance stated that Ordinance No. 444 of the city of Kingfisher is the only Sabbath-breaking ordinance in full force and effect in the city of Kingfisher; that the petitioner, on Sunday, July 4, 1948, between the hours of 1:40 p.m. and 9:30 p.m., did sell a beverage commonly called 3.2 beer which did not contain more than 3.2 per cent of alcohol by weight; that petitioner has a valid license issued by the Oklahoma Tax Commission to sell beverages containing not more than 3.2 per cent of alcohol by weight, and in addition has a valid license to sell such beverages both in Kingfisher county and in the city of Kingfisher, Oída.; that the petitioner was arrested, tried, and committed into the custody of the chief of police as set out in his petition; that the sole question to be determined in this ¡ha-beas corpus proceeding is the validity of Ordinance No. 444, of the .city of Kingfisher and its application to the facts in this case.

The city of Kingfisher is a city of the first class and is operating under a charter form of government adopted under the authority of section 3(a), art. 18 of the State Constitution.

In the case of Ex parte Hodges et al., 65 Okla. Cr. 69, 83 P. 2d 201, 203, this court stated:

“Under the constitutional provisions any city containing a population of more than 2,000 inhabitants may frame a charter form of government, consistent with the support of the constitution and laws of the State of Oklahoma, and a city adopting a charter is accorded full power of local government, and as said municipal corporation under its charter it has power to enact ordinances and enforce ordinances for the purpose of protecting public peace, order, health, morals and safety of the inhabitants, even though general statutes exist regulating the same subjects. Shinn v. Oklahoma City, 59 Okla. Cr. 433, 61 P. 2d 1126.
“The courts of this state have uniformly held that the provisions of a charter adopted and approved in accordance with such constitutional provisions becomes an organic law of such municipality and supersedes the laws of the state in conflict therewith in so far as they attempt to regulate municipal matters. In re Simmons, 4 Okla. Cr. 662, 112 P. 951.
“It has also been further held that such charter provisions, where they conflict with the general laws of the state must give way, and while they may run concurrent with the general laws of the state they must not run counter thereto. State ex rel. Burns v. Linn, 49 Okla. 526, 153 P. 826; Ann. Cas. 1918B, 139. In other words a municipality may move in the same direction as the legislature but not contrary to or in opposite directions. 3 McQuillin on Municipal Corporations, section 894; Ex parte Johnson, 20 Okla. Cr. 66, 201 P. 533; Ex parte Johnson, 13 Okla. Cr. 30, 161 P. 1097.”

The petitioner contends that the city ordinance, of Kingfisher is inconsistent with and contrary to the general law of the state.

Tit. 21 O.S. 1941 § 908 provides:

“The following are the acts forbidden to be done on the first day of the week, the doing of any of which is Sabbath-breaking:
“First. Servile labor, except works of necessity or charity.
“Second. Trades, manufacturers and merchanical employment.
“Third. All shooting, horse racing or gaming.
“Fourth. All manner of public selling, or offering or exposing for sale publicly, of any commodities, except that meats, bread, and fish may be sold at any time before nine o’clock in the morning, and except that food and drink may be sold to be eaten and drank upon the premises where sold, and drugs, medicines, milk, ice and surgical appliances and burial supplies may be sold at any time of the day.”

In 1942, the city of Ardmore operating under a home rule charter similar in its provisions to that under which the city of Kingfisher is operating, passed an ordinance prohibiting the sale on Sunday of beer containing not more than 3.2 per cent of alcohol by weight. In the case of Sparger v. Harris, 191 Okla. 583, 131 P. 2d 1011, the Supreme Court of Oklahoma held that said ordinance was invalid as being contrary to the Sabbath-breaking statute hereinabove set forth which specifically provided as an exception in subdivision four that food and drink may be sold to be eaten and drunk upon the premises where sold. That by legislative definition 3.2 beer had been classified as nonintoxicating and that no distinction could be drawn between the sale of such beverage and any other drink on Sunday.

Subsequent to the decision in Sparger v. Harris, supra, the State Legislature passed a law prohibiting the sale of beverages containing more than one-half of one per cent of alcohol by volume and not more than 3.2 per cent of alcohol by weight for consumption on the premises between hours of 12:00 o’clock midnight and 7:00 o’clock a. m. excepting Saturday nights when such beverages may not be sold between the hours of 2:00 o’clock a.m. and 12:00 o’clock noon on Sundays. Laws 1943, p. 109, Title 37, Ch. 2A, Sec. 3, 37 O.S. Supp. § 213.

Counsel for the respondent contend that the ordinance in question does not run contrary to any state law and that under a valid exercise of police power, the city had the lawful right to prohibit the sale of 3.2 beer on Sunday because of its potential evil consequences, which day has been set apart by the state law and by general custom of the people as a day of rest.

Courts have uniformly recognized laws relating to the observance of Sunday as being within the right of the Legislature to enact for the purpose of promoting order, protecting the morals of the people, and of securing comfort, happiness and health, and as being a legitimate exercise of the police power. Ex parte Johnson, 77 Okla. Cr. 360, 141 P. 2d 599.

In the case of Ex parte Hodges, supra, and Ex parte Ferguson, 62 Okla. Cr. 145, 70 P. 2d 1094, this Court held that ordinances of the cities of Shawnee and Ada were repugnant to the general Sabbath-breaking statute of Oklahoma above quoted, for the reason that under the general statute, meats, bread, and fish may be sold before 9:00 o’clock on Sunday morning, and the ordinances of the above cities prohibiting the selling of these commodities at any hour on Sunday were contrary to the general statute, and therefore invalid.

As hereinabove pointed out, the Oklahoma Legislature, subsequent to the decision of the Supreme Court in Sparger v. Harris, supra, specifically considered the question of the advisability of forbidding the sale of 3.2 per cent beer on Sundays, and after a thorough consideration of the matter, prohibited its sale during the Sunday morning hours as shown by the statute hereinabove quoted.

The Legislature by thus speaking has laid down the rule which will control in both urban and rural communities pertaining to the Sunday sale of this beverage. The state haying thus invaded this field and passed an act pertaining to the sale of this beverage on Sunday, a municipality may not pass any ordinance that conflicts with the general statute.

If tbe contention of respondent should be sustained, it would in effect be holding that each municipality in this state could determine for itself just when and where 3.2 beer could be sold.

The legislative act not only prohibited the sale of beer between certain hours on Sunday, but also from midnight to 7:00 a.m. on each week day. If a municipality may, contrary to the general law of the state, prohibit the sale of beer at any time on Sunday on the sole ground that it is for the protection of the public health, safety,, and morals, then such reasoning would also sustain their action in prohibiting the sale of beer on any night of the week, or some municipalities might under such power decide to close beer joints all day on Wednesdays, or some, if this court should say they had the power, might prohibit the sale of beer at any time.

For this court to uphold such doctrine would in effect be granting local option to each community in the state to determine for itself whether it wished to have the sale of 3.2 beer on any day of the week. That is the field of the Legislature. The wisdom of legislative acts is not a matter for the courts to determine. Legislative power not wisdom is the concern of the courts.

It is our conclusion that the passage by the Legislature, in 1943, of a general law pertaining to the sale of beverages containing not more than one-half of one per cent of alcohol as measured by volume and not in excess of 3.2 per cent of alcohol as measured by weight on Sundays, that no municipality of this state may pass a Sunday closing ordinance contrary to such general law, and for that reason Ordinance No. 444 of the city of Kingfisher is invalid.

The question has been raised in the response filed on behalf of the city of Kingfisher that habeas corpus is not the proper remedy to test the validity of the city ordinance. This court has held that where a person complains that he is being illegally deprived of his liberty, or unlawfully imprisoned, it is the court’s duty on ha-beas corpus to inquire into the cause of the restraint, and if such imprisonment is illegal, to discharge the petitioner. In following this rule, the court has considered the validity of city ordinances where the basis for the confinement of the accused has been a violation of a municipal ordinance. Ex parte Johnson, supra; Ex parte Hodges, supra; Ex parte Ferguson, supra.

It is therefore ordered that the petitioner be discharged from the imprisonment from which he complains.

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