text:
    HENRY COCHRAN v. STATE.
    No. A-10222.
    Jan. 5, 1944.
    (144 P. 2d 751.)

      Hatcher & Bond, of Chickasha, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for defendant in error.
   JONES, P. J.

The defendant, Henry Cochran, was charged by information filed in the county court of Grady county with the crime of pointing a pistol at one Fred O. Smith, was tried, convicted and sentenced to serve one year in the county jail and pay a fine of $50, and has appealed.

The complainant and defendant were farmers who lived on adjoining farms near Tuttle. A few months prior to the altercation herein involved, a controversy had occurred between them concerning some cattle of the defendant’s which were in the wheat field eating the wheat of the complainant Smith. On July 12, 1941, the defendant went to the wheat field where Mr. Smith, his two sons and two other men were engaged in harvesting the wheat. Two combines were being operated with the elder Smith on óne machine and one of his sons on the other. The testimony showed that the defendant came up to the witness I. T. Penden and asked which machine Mr. Smith was on and Penden told him the back one. There were two trucks in the field used in hauling the grain. The witnesses testified that they saw defendant run up to the green truck, open the door, look in and then slam the door. That he then went to the blue truck, opened the door and slammed it. That he came by the first combine and was saying something but the witnesses could-not hear what he was saying. He had a gun in his hand. He then went up to the combine where Fred O. Smith was working and pointed an automatic pistol at Smith and demanded that he get off the machine. That the elder Smith grabbed a wrench and one of his sons a hammer and told defendant to drop his gun and defendant shook his head. That the other parties present started toward the defendant and defendant backed off and turned and ran across the wheat field toward his home.

This was a misdemeanor case and the defendant, a layman, insisted on conducting his own defense without the services of a lawyer. His cross-examination of the state’s witnesses was very well conducted for a layman, but as is usual in a case where the defendant insists upon being his own lawyer and not being familiar with the rules of criminal procedure, no exceptions were preserved to any of the alleged errors occurring during the trial and no requested instructions were presented on behalf of the accused. An examination of the record discloses that the state was very careful in its examination of the witnesses to keep within the legal bounds of evidence. There was a tendency on the part of the defendant to want to argue with the witnesses. After the jury returned its verdict the defendant then employed counsel who filed a motion for a new trial and perfected his appeal.

In his own behalf the defendant testified that he had gone to the Smith place looking for a couple of turkeys. That he tried to stop the Smith boy on the first combine to see whether he knew where the turkeys might be located but that the elder Smith kept motioning the son to go on. That he then told the elder Smith, “If you will get off of there I will whip hell out of you.” That the elder Smith picked up a big wrench that he had laying on the machine and the defendant then pulled a wrench from his pocket. That the son of complainant and another man grabbed wrenches and started toward defendant and the defendant then turned and left. That defendant did not have a pistol in his hand that day nor even have a gun of any kind in liis possession at the time testified to by the state’s witnesses.

Counsel for defendant insist in their brief that the court erred in failing to fully instruct the jury as to the law in the case, and further that the judgment and sentence of the court is excessive and should be reduced.

This prosecution is instituted under 21 O. S. 1941 § 1279, which provides:

“It shall be unlawful for any person to point any pistol or any other deadly weapon whether loaded or not, at any other person or persons either in anger or otherwise.”

21 O. S. 1941 § 1280, provides:

“Any person violating the provisions of the three preceding sections, shall, on conviction, be punished by a fine of not less than $50, nor more than five hundred and shall be imprisoned in the county jail for not less than three nor more than 12 months.”

We have carefully examined the instructions which were given by the court. They were the usual stock instructions which are given in every criminal case. The charge against defendant was defined in the language of the statute. No exceptions were taken to any of the instructions which were given.- Although the instruction complained of defines the offense in the language of the statute, counsel for defendant insists that it did not go far enough because, under the evidence, the defendant was entitled to an instruction upon his right of self-defense.

Our statutes require a trial judge to instruct the jury as to ail matters of law which he thinks are necessary for their information in giving their verdict. If counsel for the defendant are of the opinion that additional instructions should be given to the jury, it is their duty to reduce them to writing, submit them to the trial judge and request that they be given to the jury. If they fail to do this, a conviction will not be reversed unless the court is of the opinion, in the light of the entire record and instructions of the court, that by the failure of the trial court to instruct the jury upon some material question of law, the defendant has been deprived of a substantial right. Lumpkin v. State, 5 Okla. Cr. 488, 489, 115 P. 478; Merriott v. State, 18 Okla. Cr. 247, 194 P. 263.

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.

Where the party desires the court to give any particular instruction, or to more definitely or fully state any proposition embraced in the charge, it is the duty of counsel to prepare and present to the court such desired instruction and request that it be given, and in the absence of such request, appellate court will not consider an objection that an instruction, correct as far as it goes, does not fully state the law, or that the court failed to instruct upon any given proposition, where the instructions generally cover the subject matter of the inquiry. Huff v. Territory, 35 Okla. 376, 377, 85 P. 241; Merriott v. State, supra; Dickson v. State, 25 Okla. Cr. 403, 224 P. 723, 724.

The defendant is entitled to an affirmative instruction covering the defense interposed, when requested. Where the defense amounts merely to a negation of guilt, and the trial court instructs fully upon the necessity to prove guilt beyond a reasonable doubt as against the presumption of innocence, instruction will ordinarily be held to be sufficient to cover the issues. Underwood v. State, 23 Okla. Cr. 119, 120, 212 P. 1010.

Under the testimony of the state there was absolutely no element of self-defense, in the acts committed by the accused. Under the testimony of the defendant, he admits that he went on the place where the complainant and his sons were working to start a controversy. Before the complainant said a word to the defendant, under the testimony of the accused, defendant stated to the complainant: “I told the old man Tf you will get off of there I will whip hell out of you.’ ” The defendant denies pulling a gun but says that he pulled a wrench out of his pocket. Under the record of this case we do not see any fundamental error in the instructions which were given or in the failure of the court to more fully cover the evidence disclosed by the record. It is probably true that if the defendant had employed counsel to represent him, his counsel would have requested certain instructions in writing and probably some of them Avould have been given by the trial court. We shall consider this question in connection with the discussion of the other assignment of error.

We are inclined to agree with counsel for defendant that the punishment assessed is excessive. There have been many convictions under the statute herein involved which have been appealed to this court. A review of those convictions discloses that the punishment assessed in almost all of the cases was the minimum punishment of ninety days in the county jail and a $50 fine. Although the evidence of defendant’s guilt is conclusive, there are some mitigating circumstances, including the fact that the parties Avere neighborhood farmers who had had some previous trouble, and the further fact that the attitude of the defendant in the trial of the case in conducting his own defense probably prejudiced his case in the eyes of the jury. A person can hardly read this record without concluding that the defendant, by some of the side remarks which he made during the trial, created an unfavorable impression upon the jurors. After a thorough consideration of all the various factors entering into the judgment of conviction, it is our conclusion that the ends of justice require that we modify the judgment imposed from one year in the county jail and a $50 fine to six months in the county jail and a $50 fine.

It is therefore ordered that the judgment and sentence of the county court of Grady county be modified by reducing the punishment imposed from one year in the county jail and a $50 fine to six months in the county jail and a $50 fine, and the judgment and sentence as thus modified is affirmed.

BAREFOOT, J., concurs. DOYLE, J., not participating.


source: Caselaw Access Project

author: BAREFOOT, J.

license: Public Domain

text:
    H. B. RHEUARK v. STATE.
    No. A-10248.
    Jan. 5, 1944.
    (144 P. 2d 754.)

      Harold McArthur, of Tulsa, for plaintiff in error.
    Randell S. Cobb, Atty. Gen., J. Walker Field, Asst. Atty. Gen., and Dixie Gilmer, Co. Atty., of Tulsa, for defendant in error.
   BAREFOOT, J.

Defendant, H. B. Rheuark, was charged in the district court of Tulsa county with the crime of driving a motor vehicle while under the influence of intoxicating liquor, having been previously convicted in municipal criminal court for driving while under the influence of intoxicating liquor; was tried, convicted and sentenced to serve a term of one year in the State Penitentiary, and has appealed.

The defendant was charged by reason of driving a Ford automobile upon the public streets of the city of Tulsa on August 19, 1941, while under the influence of intoxicating liquor. The information also charges that he had been previously convicted in municipal criminal court of the city of Tulsa on June 26, 1941, on a similar charge. On the first charge he was fined $10 and costs, which he paid.

The statute under which defendant was charged is 47 O. S. A. 1941 § 93, and is as follows:

“It shall be unlawful for any person who is under the influence of intoxicating liquor, * * * to operate or drive a motor vehicle on any highway within this State, as defined in Section 1, of this Act and any person violating the provisions of this Section shall be deemed guilty of a misdemeanor for the first offense and upon conviction therefor shall be punished by imprisonment in the county jail for a period of time not to exceed one (1) year, or by a fine or not more than Five Hundred ($500.00) Dollars or by both such fine and imprisonment. Any persons found guilty of a second offense under the provisions of this Act shall be deemed guilty of a felony and upon conviction therefor shall be punished by imprisonment in the State Penitentiary for a period of time not to exceed two (2) years, or a fine of not more than One Thousand ($1,000.00) Dollars or by both such fine and imprisonment.”

This statute was enacted by the Legislature in 1941, amending section 10324, O. S. 1931. The only change was with reference to making the first offense a misdemeanor, and the second a felony. Watts v. State, 76 Okla. Cr. 362, 137 P. 2d 268.

It is contended by defendant that the court erred in refusing to sustain the demurrer to the information by reason of the allegation as to the second offense. The case of Fowler v. State, 14 Okla. Cr. 316, 170 P. 917, is cited in support of this proposition. A careful reading of this case discloses that it is based upon different allegations and facts than those in the instant case. It has reference to the habitual criminal statute, 21 O. S. A. 1941 § 51, while the specific statute above quoted applies here. The language in the information is definite and certain, and fully apprises the defendant of the nature of the charge, and the court, and the date thereof in which the defendant had been previously convicted.

It is next contended that the court erred in admitting exhibits 1, 2 and 3. These were copies of the information, the verdict of the jury, and the appearance docket showing the judgment and sentence of the municipal criminal court of the city of Tulsa. They were the only records kept by the court, and we see no reason why they were not admissible.

In addition to these records, the state introduced in evidence the testimony of the judge before whom defendant was tried, and he testified to the trial, conviction and sentence. The defendant offered in evidence the testimony of the attorney who defended him, and he testified to the same facts. The defendant also testified to his prior conviction on the date alleged in the information, and to the payment of his fine. If there had been any omission in the testimony, the defendant supplied the omission.

Defendant contends that the evidence is insufficient to sustain the judgment and sentence, but in his brief states: “* * * this plaintiff in error admits the State made out a prima facie case as to driving while under the influence of intoxicating liquor pertaining to the 19th day of August, 1941.” This admission is sufficient to sustain the conviction.

There was conflict in the testimony as to whether the defendant was under the influence of liquor at the time of Ms arrest, but the evidence of the state fully supports the verdict of the jury, which is conclusive upon appeal.

Defendant also contends that the judgment and sentence is excessive. The defendant was given one year in the penitentiary. The maximum punishment provided by the statute was two years in the penitentiary, and a fine of $1,000. The facts in this case are such that the judgment and sentence might be considered excessive, if it were not for the previous record of this defendant. He was arrested by a police officer of the city of Tulsa. He was in an old model Ford car. He was weaving from side to side of the street, and the officer tried to stop him for two blocks by blowing his whistle and hollowing at him. He finally stopped in front of a grocery store, and the officer, seeing he was drunk, placed him under arrest and saw in his car, partially under the seat, a pint bottle of corn whisky about one-half full. While the officer was telephoning for the patrol wagon, defendant left and went across the street to a filling station. The officer who came to get him also testified that defendant was under the influence of liquor at the time he arrived. That he staggered when he walked, and they could smell liquor on his breath. The defendant, his mother and two other witnesses testified that in their opinion he was not under the influence of liquor at the time of his arrest. He testified that he had not drunk any whisky, and that he did not know there was any whisky in the car; that he had loaned his car to some woman the night before, but he did not have her there to testify. He admitted drinking two bottles of beer just prior to his arrest.

The evidence of the defendant on cross-examination revealed that he had been previously convicted of driving a vehicle while under the influence of intoxicating liquor, and also of being drunk’ and convicted on numerous oceasions. That he had also been previously convicted of a felony, but stated that he had never been to the penitentiary.

The testimony with reference to his previous record was undoubtedly the cause of the jury giving him a penitentiary sentence.

Under these facts, we cannot say that the judgment and sentence was excessive, and it is, therefore, affirmed.

JONES, P. J., concurs. DOYLE, J., not participating.


text:
    LOUIS FERGUSON v. STATE.
    No. A-10249.
    Jan. 12, 1944.
    (145 P. 2d 216.)

      Primus C. Wade, of Tulsa, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., Jess L. Pullen, Asst. Atty. Gen., and Dixie Gilmer, Co. Atty., of Tulsa, for defendant in error.
   BAREFOOT, J.

Defendant, Louis Ferguson, was charged in the district court of Tulsa county by indictment of the grand jury with the crime of rape in the first degree; was tried, convicted and by the court his punishment assessed at 27 years in the State Penitentiary, and he has appealed.

To substantiate the charge in this case, it was alleged that the defendant committed rape upon his twelve year old daughter, Earline Ferguson, on or about the 29th day of' October, 1941, by having intercourse with her at his home, 718% East Pine street, in the city of Tulsa, Tulsa county, Oklahoma.

All of the alleged errors may be considered together.

It is first contended that there was a variance between the allegations of the indictment and the proof offered by the state. We have carefully examined the indictment and the record. The prosecutrix testified positively as to the time and the date at which the intercourse occurred. The defendant did not testify, and did not offer any testimony. The court properly instructed the jury as to the time element. We are of the opinion that there was no variance between the allegations of the indictment and the proof,

It is next contended that this case should be reversed because of the argument of the assistant county attorney. In the first place, it is very doubtful whether exceptions were taken to this argument in the manner prescribed by the cases decided by this court. However, we have examined the record and do not find any statement made by the assistant county attorney in his opening statement or in his argument to the jury that would cause any prejudice against the defendant, taking the entire record into consideration.

Defendant contends that the permitting of the prosecutrix to testify to other acts of intercourse between the defendant and herself shortly prior to the act alleged in the indictment was prejudicial, and that the court erred in permitting this evidence to be submitted to the jury.

This court has often held that evidence of this nature is admissible in cases of this character, and as the facts here revealed. The act was between the same parties, and within a short space of time prior to the time of the alleged act. Weeden v. State, 73 Okla. Cr. 258, 120 P. 2d 379; Gregg v. State, 69 Okla. Cr. 103, 101 P. 2d 289; Marlow v. State, 20 Okla. Cr. 326, 202 P. 1048, and cases cited therein; Morris v. State, 9 Okla. Cr. 241, 131 P. 731.

The contention that the evidence is insufficient to sustain the judgment can not be sustained. This contention is principally based upon the fact that the evidence of the prosecutrix is not properly corroborated. An examination of the record refutes this. The evidence of the prosecutrix is that she was 12 years of age, and that her father had intercourse with her on the 29th day of October, 1941, on the bed in their home. She states the circumstances and there is nothing conflicting or unreasonable in her statement. She also relates other instances of the same kind prior to that date. In a voluntary statement made by the defendant to the police officers of the city of Tulsa the day after his arrest, the defendant admitted the act of intercourse at the time alleged, and also two previous acts. He stated:

“The first time was at 2412 North Peoria; I had just got out of the Tulsa county jail; the second time was at Pawnee, Okla., sometime during the summer, and the last time was about one month ago at my home at 718% East Pine Street.
“Q. (By the officer) Just why did you ever do such a thing, Ferguson? A. Well, Ear line always slept with me from a baby, and I never thought there was any harm to it. I was raised in Old Mexico, and they didn’t pay no attention to anything like that down there. You see, when I got out of jail I went home and ate, and was tired and sleepy and layed down upon the bed and she came there and played with me, and I don’t know — that passion came on me.”

Dr. James H. Neal testified to examining prosecutrix on November 17, 1941, and that the hymen had been ruptured, and that in his opinion she had had intercourse with some one. He also testified to other physical facts which corroborated this statement.

No evidence was offered by the defendant.

We have often held that a conviction for rape may be sustained upon the uncorroborated evidence of the prosecutrix; but it is also the rule that such evidence must not be inherently improbable, incredible, unreasonable or contradictory. We do not find that the evidence in this case comes within the exception. Gordon v. State, 75 Okla. Cr. 356, 131 P. 2d 503; Hulsey v. State, 65 Okla. Cr. 382, 87 P. 2d 1110, and cases cited therein; Malone v. State, 40 Okla. Cr. 102, 267 P. 486; Ferbrache v. State, 21 Okla. Cr. 256, 205 P. 617.

The. contention that the sentence of 27 years is excessive cannot be sustained. The maximum punishment under the law is death or imprisonment for life, and under the facts here revealed, we do not find that the punishment assessed is excessive.

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

JONES, P. J., concurs. DOYLE, J., not participating.


author: JONES, P. J.

text:
    DELBERT NEWTON HEALD v. STATE.
    No. A-10212.
    Jan. 12, 1944.
    (145 P. 2d 206.)
    Melton, McElroy & Vaughn, of Chickasha, for plaintiff in error.
    Randell S. Cobb, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for defendant in error.
   JONES, P. J.

The defendant, Delbert Newton Heald, was charged by information filed in the county court of Grady county with the crime of driving an automobile on the public highway while under the influence of intoxicating liquor, a jury was waived, the defendant was tried to the court, found guilty and sentenced to pay a fine of $75, and has appealed.

The sole contention of defendant is that the evidence was wholly insufficient to establish as a fact that the defendant, at the time set forth in the information, was driving an automobile while under the influence of intoxicating liquor.

The defendant testified in his own behalf and admitted driving the pick-rip truck as alleged in the information and having a slight collision with another automobile parked near a tavern south of the city of Chickasha on the public highway. The defendant specifically denied that at the time he was driving the automobile that he was under the influence of intoxicating liquor, but testifies that he ha,d eaten his supper at the tavern and then had gone with a friend a short way down the road and there had drunk a pint of whisky. That within less than two minutes after he had drunk most of the pint of liquor, the collision occurred. That it occurred so quickly after he had drunk the liquor that it had not had time to have affected him, although he admits that by the time the officers arrived several minutes later he was in a very intoxicated condition.

A man and woman were sitting in the parked automobile Avhich Avas struck in the rear by defendant’s pickup. ‘ The woman testified that the defendant drove his pick-up into the back end of the car in which they were sitting. She further testified that the defendant immediately got into an argument with the owner of the car in AAdiich she was sitting and used loud language and curse Avords. That she could smell intoxicating liquor on his breath. That his words “were very much run together.” That when he saw her he attempted to put his arm around her and that in her opinion he was under the influence of intoxicating liquor.

Most of the other witnesses were police officers or highway patrolmen who arrived at the scene of the collision from approximately 15 to 30 minutes after the collision occurred. All of their testimony was to the effect that defendant, at the time they saw him, was intoxicated. That he admitted driving the car and he was taken to jail that night.

We refer to the testimony of Jim Brockman, highway patrolman, as being typical of the testimony given by the officers as to defendant’s condition. A portion of his testimony is as follows:

“Q. What is your opinion, Mr. Brockman, as to whether or not at the time you saw Mr. Heald he was or was not under the influence of intoxicating liquor? A. He was under the influence of liquor. Q. Upon what facts do you base that statement? A. A strong alcoholic odor was very noticeable on his breath. His clothing and hair were disarranged and he had a mark on his face that looked like he had been in a scuffle or fight. Q. What was the condition of his eyes? A. They were noticeably bloodshot. Q. What about his manner of speech? A. His speech was rather thick and incoherent at the time I talked to him. Q. And in addition to his eyes being bloodshot, were they glassy? A. They had all the appearance of the eyes of a drunk man.”

Although the damage caused in the collision was inconsequential and there is some testimony indicating that if defendant had paid for the slight damage done to the car of complainant the officers would not have been called, there still remains abundant evidence to sustain the conviction. The defense interposed was very ingenious, but evidently not convincing to the trial court. A jury being waived, the judgment of the trial court upon a disputed question of fact, where there is competent evidence to support his finding, will he entitled to the same weight on appeal as the verdict of a jury.

The judgment- and sentence of the county court of Grady county is accordingly affirmed.

BAREFOOT, J., concurs. DOYLE, J., not participating.


text:
    IVORY BUTLER v. STATE.
    No. A-10192.
    Jan. 19, 1944.
    (145 P. 2d 215.)

      C. D. Wilkinson, of Idabel, for plaintiff in error.
    Randell S. Cobb, A tty. Gen., and Ed. Shipp, Go. Atty., of Idabel, for defendant in error.
   BAREFOOT, J.

Defendant, Ivory Butler, was charged in the district court of MeCurtain county with the crime of larceny of domestic animals; was tried, convicted, sentenced to serve two years in the State Penitentiary, and has appealed.

When this case was assigned for oral argument, no one appeared for the defendant, and no brief has been filed in his behalf.

When this case was called for trial, the county attorney was granted permission to amend the information by changing the name of the party from whom the yearling was alleged to have been stolen from W. R. TIewett to L. M. Mackey.

Title 22 O. S. A. 1941 § 304 provides:

“An information may be amended in ,matter of substance or form at any time before the defendant pleads, without, leave, and may be amended after plea on order of the court where the same can be done without material prejudice to the right of the defendant; no amendment shall cause delay of the trial, unless for good cause shown by affidavit.”

In construing this statute, we have often held that an information may be amended in matters of either form or substauce when it can be done without prejudice to the rights of the accused. Herren v. State, 72 Okla. Cr. 254, 115 P. 2d 258; Ward v. State, 34 Okla. Cr. 296, 246 P. 664; Hammous v. State, 47 Okla. Cr. 297, 298 P. 1076; Little v. State, 21 Okla. Cr. 1, 204 P. 305.

In the following cases it has been held that the name of the owner of the stolen property is not a material matter, and that the legal title to the property alleged to have been stolen is of no concern to the thief: Little v. State, supra; Dickson v. State, 28 Okla. Cr. 378, 231 P. 315; Teague v. State, 64 Okla. Cr. 369, 81 P. 2d 331; Cassell v. State, 76 Okla. Cr. 79, 128 P. 2d 1016.

There was a direct conflict in the evidence, the defendant testifying that he had raised the yearling and it was his property. Witnesses for the state testified that it was the property of Mr. Mackey, who had purchased it from Mr. Hewett. With this conflict in the evidence the verdict of the jury will not be set aside by this court on appeal. It is only when the evidence is insufficient to sustain the judgment and sentence that the court on appeal will set aside the verdict of the jury. This court has repeatedly held that where the evidence and the reasonable and logical inferences and deductions to be drawn from it are sufficient to convince the jury beyond a reasonable doubt of the guilt of the defendant, the verdict will not be set aside.

Finding no reversible error, the judgment and sentence of the district court of McCurtain county is affirmed.

JONES, P. J., and DOYLE, J., concur.


text:
    Ex parte FREDA MAY WILKINS.
    No. A-10473.
    Jan. 19, 1944.
    (145 P. 2d 438.)

      Herbert K. Hyde, of Oklahoma City, for petitioner.
    Randell S. Cobb, Atty. Gen., and J. Walker Field, Asst. Atty. Gen., for respondent.
   JONES, P. J.

This is an original proceeding in habeas corpus instituted for the purpose of securing the release from confinement in the State Industrial School for White Girls at Tecumseh of one Freda May Wilkins.

The verified petition alleges that on September 21, 1843, the said Freda May Wilkins was placed in jail in Oklahoma county, Oklahoma. That proceedings were instituted in the county court of Oklahoma county to have said minor child declared a delinquent child. That on September 30, 1943, the county court of Oklahoma county, by its judgment, found that the said Freda May Wilkins was born on August 22, 1926, and was 17 years of age at the date of said hearing. The court further found and adjudged that the said Freda May Wilkins is a delinquent child and that, as such, she should be committed to the State Industrial School for White Girls at Tecumseh. Pursuant to the judgment of the court, the said Freda May Wilkins was delivered to the custody of Mrs. Creighton Burnham, Superintendent of said State Industrial School for White Girls, and that since said date she has been confined in said institution. That the said Freda May Wilkins is 17 years of age and, under the law, the county court of Oklahoma county was wholly without authority to commit her to said Industrial School.

The writ of habeas corpus was issued, and upon the hearing before this court the sole issue presented was whether, under the statutes pertaining to the commitment of delinquent children, a county court has jurisdiction to commit a female over the age of 16 years to the State Industrial School for White Girls.

Early in the history of our state the Legislative Session of 1909 made provision for the care and supervision by the county courts of this state of dependent and delinquent children. Session Laws 1909, ch. 14, art. 8. These statutes continued as a part of our law without change and were carried forward as sections 1729 to 1742, inclusive, of the 1931 Code. Later the Legislative Session of 1935, and subsequent thereto the Legislative Session of 1941, amended certain sections of the laws pertaining to dependent and delinquent children. The law as it now pertains to said children is set forth in 10 O. S. 1941 §§ 101 to 114, inclusive.

Section 1729, O. S. 1931, 10 O. S. 1941 § 101, defines a “dependent child” and a “delinquent child” as “any child under the age of sixteen years” who came within the terms of the statute. The other sections of the statute concerning dependent and delinquent children, set forth in the 193.1 Code hereinabove referred to, conferred jurisdiction on the county courts of this state over said dependent and delinquent children and prescribed a full and complete procedure for the hearing and disposition of such cases.

Section 1737, O. S. 1931, 10 O. S. 1941 § 109, pertains to the care and supervision of dependent and neglected children under the age of 16 years.

Section 1739, O. S. 1931, 10 O. S. 1941 § 111, pertains to delinquent children and specifically gives the county court authority to commit such delinquent child, if a boy, to the State Training School for Boys, or, if a girl, to the Industrial School for Girls. In the latter part of said section 1739, supra, it was specifically provided: “In no case shall a child beyond the age oj: sixteen years be committed to an institution.” This section of the statute has never been amended or changed and is now found as 10 O. S. 1941 § 111.

The Fifteenth Legislature (1935), under the provisions of House Bill No. 175, p. 8, amended only two sections, 1729 and 1737, of the Oklahoma Statutes of 1931. Section 1729 was amended to define the term “dependent child” as “any male child under the age of sixteen years and any female child under the age of eighteen years, * * *” and the term “delinquent child” shall “include any child under the age of sixteen * * *.” We are not here concerned with the amendment to section 1737, O. S. 1931, as the same pertains solely to the commitment of dependent children.

The Eighteenth Legislature, under the provisions of House Bill No. 123, c. 5a, further amended section 1729, O. S. 1931, which had been amended as hereinabove set forth by art. 1. sec. 1, ch. 14 of the Session Laws of 1935, which section of the statute as now amended appears in our present Code under 10 O. S. 1941 § 101. The 1941 amendment defines “delinquent child” to include “any male child under the age of sixteen years and any female child under the age of eighteen years * * *.”

It will be observed from an examination of the amendments made by the 1935 Act of the Legislature and by the further amendment by the Legislature of 1941 that no attempt was made to change any portion of the original law pertaining to dependent and delinquent children except sections 1729 and 1737.

All of the other provisions of the statutes of 1931 relative to dependent and delinquent children, with the exception of the two amendments hereinabove named, are still in force and effect with regard to the jurisdiction, control and procedure applicable to such dependent and delinquent children.

The confusion that has arisen is the result of the change in the ages of a delinquent female from the age 16 to age 18 as now set forth in the first section of the 1941 Code, hereinabove quoted.

The provision in section 1739, O. S. 1931, 10 O. S. 1941 § 111, hereinabove referred to, limits the authority of a county court, insofar as it pertains to the commitment of a delinquent child to an institution, to children 16 years of age and younger. This section of the statute has never been amended or repealed.

Although under the provisions of 10 O. S. 1941 § 101 the county courts are given jurisdiction of delinquent children up to the age of 18 in case of a female, the said county court, under the provisions of section 111, supra, may not commit said female to an institution if she is over the age of 16 years. Where proceedings are instituted in a county court to have a female over the age of 16 years and under the age of 18 years adjudged a delinquent child, the county court may, if the facts justify, adjudge said child to be a delinquent. In such a case his jurisdiction is limited to the commitment of said child to a probation officer, or any other person, or placing her on probation in her home, or may place her under probation in such other places provided in the statute by placing her in a suitable family home, etc. 10 O. S. 1941 § 111. But in no case where said female is over the age of 16 may she be committed to the State Industrial School for White Girls.

This court can perceive some reasons why the Legislature would thus continue the limitation on the authority of the county court to commit a girl over the age of 16 years to the State Training School for White Girls. Girls over that age are more mature. They are harder to control and are more likely to have a detrimental effect upon the morals and outlook upon life of girls confined in said institution who are much younger. Irrespective of the motives behind the legislative mandate, the Legislature has fixed the age of 16 as the maximum age' at which the county courts of this state may commit delinquent children to a state institution.

Although the county court is without jurisdiction to commit a female over the age of 16 years to an institution, said county court does have a continuing jurisdiction over any child adjudged to be a delinquent as a ward of the court until the age of 21 years is reached, or until such child shall have been discharged by an order of said court. 10 O. S. 1941 § 112.

For a more full and complete discussion of the juvenile law and the duty of the courts in respect to children who come within its terms, see the case of In re Powell, 6 Okla. Cr. 495, 120 P. 1022.

For the reasons hereinabove stated, it is apparent that the county court of Oklahoma county was without authority or jurisdiction to commit the said Freda May Wilkins to the State Industrial School for White Girls because at the date of said commitment she was seventeen years of age.

Nothing in this opinion shall be construed to interfere with the authority of the county court to place said Freda May Wilkins on probation as a ward of said court in such home and under such supervisory control as is prescribed by law, other than to commit her to a state institution.

The Superintendent of the State Industrial School for White Girls is hereby authorized and directed to release the said Freda May Wilkins from custody in the State Industrial School for White Girls, and said cause is remanded to the county court for further proceedings.

BAREFOOT, J., concurs. DOYLE, J., not participating.


text:
    NELLIE ROBERTS v. STATE.
    No. A-10283.
    Jan. 26, 1944.
    (145 P. 2d 435.)
    Frank Leslie, of Tulsa, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., J. Walker Field, Asst. Attv. Gen., and W. F. Gilmer, Co. Atty., of Tulsa, for defendant in error.
   BAREFOOT, J.

Defendant, Nellie Roberts, was charged in the court of common pleas of Tulsa county with the crime of unlawful possession of intoxicating liquor, to wit, nine pints of assorted liquor; was tried, convicted and sentenced to serve a term of six months in the county jail, and to pay a fine of $500, and has appealed.

A. motion to dismiss the appeal was filed by the Attorney General, and a response filed thereto. Thereafter the case-made was withdrawn and corrections made, which, in our opinion, cures any error complained of with reference to the perfecting of the appeal. The motion to dismiss the appeal is therefore overruled.

This case is the outgrowth of a search made by the county officers of Tulsa county at the residence of defendant, on August 18, 1941, at which time nine pints of whisky were found. The premises were described as 2901 East Second street, Tulsa, Okla.. Defendant was not present when the search started, but arrived before it was concluded, and made the statement in the presence of the officers that “it was her whisky and nothing there was the whisky of her mother or her brother.” Defendant’s mother and brother were present at the time the search was made, as were also several full-blood Indians, who were in an intoxicated condition. While the search was in progress two girls about 10 years of age came to the premises for the purpose of buying a pint of gin. They were referred by the officers to the defendant’s brother as “the man of the house.” He, of course, refused to sell them any liquor, stating that he did not have any, and when told by the officers that the place was being searched by them, the girls left.

When this matter was referred to the office of the county attorney of Tulsa county, instead of filing a joint charge against the defendant and her brother, two separate informations were filed, one against the defendant Nellie Roberts, and one against her brother, Lee Glenn. He was first tried and convicted, and bis case appealed to this court, and affirmed. Glenn v. State, 77 Okla. Cr. 124, 139 P. 2d 611. Pending the appeal of his case, this defendant was tried and convicted, and this is her case on appeal.

It is revealed by the record, and admitted by the state, that the liquor with the possession of which this defendant is charged, is the identical liquor with which her brother, Lee Glenn, was charged with having the possession, in the above case; and that it was found by the same officers, during the same search. It is the contention of defendant that Lee Glenn, having been charged with the possession of this identical liquor, and having been tried and convicted for the possession thereof, she could not lawfully be charged with the possession of the same liquor, and that the trial court erred in refusing to sustain a demurrer to the evidence, and the motion to dismiss the prosecution against her.

We have examined the decisions of this court and do not find that this identical question has ever been raised or passed upon by this court. We have had questions that may have been of similar intent, but not this exact question. We have held that an offense cannot be split into separate actions and two charges made as the result of the same search. Beaman v. State, 69 Okla. Cr. 455, 104 P. 2d 260; Beaman v. State, 69 Okla. Cr. 159, 101 P. 2d 281; Estep v. State, 11 Okla. Cr. 103, 143 P. 64, 69.

And Ave have held that one could not be charged with both the transporting and possession of the identical liquor, found at the same time. Snelling v. State, 41 Okla. Cr. 124, 271 P. 687; Hourigan v. State, 38 Okla. Cr. 11, 258 P. 1057; Grant v. State, 6 Okla. Cr. 172, 117 P. 1100. Or the sale and possession of the same liquor. Kimbrell v. State, 7 Okla. Cr. 354, 123 P. 1027.

We have also held tliat where intoxicating liquor was found by one set of officers at certain premises at a certain time of day, and other officers at a different time found other liquor on the same premises, yet at a time when the owner could have had time and an opportunity to place the same there after the first search of the premises, the owner could be charged and convicted of each offense. Vincent v. State, 75 Okla. Cr. 128, 129 P. 2d 214; Vincent v. State, 75 Okla. Cr. 116, 129 P. 2d 196.

But as above stated, the charging of two different parties in two separate informations, with the possession of the same liquor, seems to be of first import in this case. The brief filed by the defendant is limited, and the state has filed no brief. In our search we have been unable to find a case directly in point on the issue as above stated. We have come to the conclusion, however, that the county attorney had the right under the law of this state to file the two informations.

In the first place, a joint information could have been filed. If one of the parties should have been granted a severance, they would then have stood as each having been indicted separately, and they would have been separately tried. If the jury had found a joint interest in the liquor, both of them could have been convicted. If the jury in the instant case came to the conclusion that one had the legal title to the whisky found, but that the other had possession of the same for the purpose of selling, both could have been found guilty. The amount of liquor found was nine pints. Three pints were found in the residence, and six pints in a garage on the premises.

The circumstances as above related and found by the officers justified the jury in coming to the conclusion that liquor was being sold on the premises. The amount of liquor found was prima facie evidence, under the law, that the possession of the same was for the purpose of unlawful sale. The defendant did not take the witness stand to rebut this presumption. She was the owner of the premises where the liquor Avas found. Her admission that it was her property, and that she was selling whisky and intended to keep on selling the same was sufficient justification for the jury to return a A'erdict of guilty against this defendant. The fact that some other party may have been convicted of the possession of this identical liquor is in our opinion no reason for discharging the defendant, under the record presented in this case.

We have carefully examined the authorities cited in the brief of defendant with reference to twice being put in jeopardy. These cases all refer to where the same defendant is twice, put upon trial for the same offense, and do not deal Avith the question of different defendants being tried separately. There is, in our opinion, a clear distinction in the facts as they here exist.

It is further contended that the court erred in refusing to quash the evidence procured under the search warrant. This is based upon the fact that the search warrant had therein the name “John Doe,” and it also contained the name “Nellie Roberts.” We do not think the court erred in overruling this motion. The word “John Doe” could have been considered surplusage in this instance, because the name “Nellie Roberts” appears in the search warrant, and the identical number of the premises stated in the search warrant, was the number of the premises searched. All of the evidence was that it was defendant’s residence. Vincent v. State, supra; State v. Skelton, 36 Okla. Cr. 377, 254 P. 754; Crim v. State, 68 Okla. Cr. 390, 99 P. 2d 185; Ross v. State, 38 Okla. Cr. 252, 260 P. 90; Sherwood v. State, 48 Okla. Cr. 263, 290 P. 1112.

It is further urged that this case should be reversed by reason of the argument of the county attorney. While the argument was very vigorous, we do not think it was subject to the criticism urged.

The maximum punishment was assessed in this case, that of six months in jail and a $500 fine. We think, taking into consideration the amount of liquor found, and the statement of the county attorney in his argument that: “I have had a world of experience and know what I am talking about when I tell you that this all leads to other crimes, and murder and bloodshed;” and it is revealed by the brief of the defendant that the stepfather of the defendant had been charged with murder about three weeks prior to the trial of this case, and other circumstances, that the j)unishment should be modified to 90 days in the county jail of Tulsa county, and a fine of $250, and as so modified, the judgment and sentence of the court of common pleas of Tulsa county is affirmed.

JONES, P. J., concurs. DOYLE, J., not participating.


text:
    Ex parte JOE BURNETT.
    No. A-10406.
    Jan. 26, 1944.
    (145 P. 2d 441.)

      Joe Burnett, in pro. per.
    Rand ell S. Cobb, Atty. Gen., for respondent.
   JONES, P. J.

This is an original proceeding in babeas corpus instituted by tbe petitioner, Joe Burnett, to secure his release from confinement in the State Penitentiary.

The petitioner entered bis plea of guilty in tbe district court of Payne county to the alleged dime of “armed robbery, a second and subsequent offense,” and was sentenced to serve ten years in the State Penitentiary where he has since been confined.

The sole ground for seeking discharge by habeas corpus is the contention that the information is fundamentally defective and ambiguous, and insufficient to confer jurisdiction upon the district court to sentence the petitioner to ten years in the State Penitentiary.

The information is lengthy. After alleging two former convictions, the part of said information complained of charges the petitioner with the following:

“That on the 18th day of November, 1939, Joe Burnett,. then .and- there being and acting conjointly with one Harry Roberts, did then and there, with the intent, if resisted, to kill or wound one O. R. Dephenbaugh, they, the said Harry Roberts and Joe Burnett so acting together, being then and there armed with dangerous weapons, to-wit: one pistol and one rifle, a more exact description of which is unknown to this affiant, and they, the said Joe Burnett and Harry Roberts, so acting together, did then and there unlawfully and feloniously rob, steal, and take away from the person and the control of him, the said O. R. Dephenbaugh, eight (fS.OO) dollars in good and lawful money of the United States of America, one .22 pistol, one .22 rifle, three cans of tobacco, all being of the' reasonable value of fifty (f50.00) dollars in good and lawful money of the United States of America, and the same being the personal property of him, the said O. R. Dephenbaugh, said property being so stolen and taken at the time of said assault, and while the said Joe Burnett and Harry Roberts were so armed with such dangerous weapons as aforesaid, contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the State of Oklahoma.'’

It is the contention of petitioner that the information is fatally defective in not alleging that the property taken from the complainant, O. R. Dephenbaugh, was procured through force or fear engendered by the use of firearms had and held in the hands of the defendant.

21 O. S. 1941 § 791 defines robbery as follows :

“Robbery is a wrongful taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear.”

In the case of Cannon v. State, 71 Okla. Cr. 42, 107 P. 2d 809, 810, it is stated:

“Here the evidence revealed that defendant, at the time she entered the automobile, had in her hand a bright object which was concealed under her coat sleeve as she placed this instrument in the side of the prosecuting witness and directed him to drive on. The prosecuting witness testified: * * this one here had a coat on and apparently had something in her hand or in her sleeve and jobbed me and said go in this side, go this way, hurry up, go this way and she pointed east.’
“That it had the appearance of a gun, and he believed it was one, and for fear of his life, he did as he was told, and under these circumstances he was robbed of his money. Under these facts there can be no question but that the defendant was guilty of robbery and not of larceny. The three cases above cited discuss fully the distinction between robbery and larceny from the person. Often the distinction between these crimes is very close. To constitute robbery the taking is accomplished either by force or by putting in fear. The violence or intimidation in robbery must precede or be contemporaneous with the taking of the property. The violence must be actual, personal violence, but the degree of force used is immaterial, except under statutes which provide for a punishment varying with the violence which accompanies the taking. If putting in fear is proved the offense is robbery.”

To constitute a good information charging the crime of robbery with firearms there should be an allegation that the. property was taken by means, of force or fear. It does not mean, however, that these identical words have to be inserted in the information. If words are used in the information which, in their common acceptation, or by reasonable intendment, can be understood to charge that the taking of personal property was accomplished by means of force or fear, then the information is sufficient.

It is fundamental that the information must state the acts constituting the offense in such a manner as to enable a person of common understanding to know what is intended.

If the information herein had been attacked by demurrer at the time of the arraignment of the accused, the better practice would have been for the court to have sustained the demurrer and directed the county attorney to file an amended information to conform to the statute on robbery.

The minutes of the court proceedings showed that the accused was arraigned on January 20, 1940, and entered his plea of not guilty. That on February 9, 1940, he withdrew his plea of not guilty and entered his plea of guilty without, at any time, challenging the sufficiency of the information.

In the case of Ex parte King, 41 Okla. Cr. 241, 272 P. 389, it is stated:

“The general rule is that the writ of habeas corpus may not be used either before or after conviction to test the sufficiency of an indictment or information. Where an indictment or information is merely defective, demurrable, or subject to a motion to quash, or technically insufficient, but may be amended to state the crime sought to be charged, the person held by process based upon it is not entitled to test the sufficiency of the indictment or information by habeas corpus. Where, however, the indictment or information is fundamentally defective in substance, so that it cannot be amended to charge a crime in any manner or form or by any intendment, it is void, and a person held by process based on such void charge is entitled to discharge by habeas corpus.”

In that case the facts were more favorable to the accused than the facts in the instant case. King had been jointly charged in the district court with one Ward. Ward was convicted and appealed to this court and the conviction was reversed for the reason that the information was insufficient. Ward v. State, 34 Okla. Cr. 296, 246 P. 664. The petitioner King did not appeal his conviction, but after the reversa] of the Ward case he sought his release from confinement by habeas corpus. This court, after citing the general rule, hereinabove quoted, stated:

“Here the information, attempting to charge defendant with the crime of robbery by firearms, was defective, indefinite, and insufficient, and demurrer thereto should have been sustained. On appeal this court would have reversed the judgment for insufficiency of the information, as was done in the companion case of Ward v. State, supra. Yet, while the information is defective, still by intendment it can be determined what the pleader intended to charge. The information can be made by amendment to properly charge the offense attempted to be charged. See Ex parte Kennedy, 10 Okla. Cr. 648, 135 P. 1194. This court in effect held in the Ward Case, supra, that the information was demurrable only, and could be amended; that is, the information was defective and technically insufficient, but was not so fundamentally defective in substance as to charge a crime in no manner or form and by no intendment.”

If the information charged only the offense of grand larceny, as contended by petitioner, it still would confer jurisdiction on the district court to sentence the defendant to ten years in the State Penitentiary as a second offender. Under the provisions of the Habitual-Criminal Act (21 O. S. 1941 § 51), the court had jurisdiction to sentence the petitioner to a term of ten years in the State Penitentiary as a second offender, even though the information should be held to have charged only the offense of grand larceny.

No contention is made that the defendant was misled by the allegations of the information, or that he was not advised of his constitutional rights, but his release is sought solely upon the technical ground that the information failed to allege that the taking was accomplished by means of force or fear.

Under the view which we have taken of this case, and in the light of the authorities which we have hereinabove cited, it is our conclusion that the writ of habeas corpus should be denied.

It is so ordered.

BAREFOOT, J., concurs. DOYLE, J., not participating.


text:
    LEWIS CRIM v. STATE.
    No A-10251.
    Jan. 26, 1944.
    (145 P. 2d 444.)

      Tom Wallace, of Sapulpa, for plaintiff in error.'
    Randell S. Cobb, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for defendant in error.
   JONES, P. J.

The defendant, Lewis Crim, was charged by information filed in the superior court of Creek county with the unlawful possession of intoxicating liquor, was tried, convicted and sentenced to serve 30 days in the county jail, pay a fine of $50, and has appealed.

The sole question necessary to consider in the disposition of this appeal is whether the court erred in overruling the motion of defendant to suppress the evidence of the state on the ground that the search of defendant’s automobile was without a search warrant and was an unlawful and unconstitutional invasion of the rights of defendant.

There is little dispute as to the facts. Three officers of Creek county went to a tavern west of the city of Bristow looking for one Wilson Clinton. When they arrived at the tavern some one informed them that there was a man in front of the place of business trying to vomit. This person to whom their attention was directed was the defendant. He was standing near the back end of a pick-up vomiting and when they approached they noticed that he was in an intoxicated condition. They arrested him and transported him to the city jail at Bristow.

Some one at the tavern informed them that the defendant had come to the tavern in a Pontiac car which was parked several cars away from the pick-up where the defendant appeared to be sick. 'When the officers arrested the defendant he had something in his hand which the officers thought were keys to the car, which the defendant threw into the weeds. Before taking the defendant to town the officers went to the Pontiac automobile and attempted to open the doors but they were locked. After they had incarcerated the defendant in the city jail, the officers procured the services of a locksmith who made a key that enabled the officers to open the doors of the Pontiac. A search of the Pontiac disclosed the liquor in question, which is the basis of the prosecution herein. It is admitted that the officers had no search warrant for the search of the automobile.

It is urged by the state that the facts in this case come within the rule of law that when a person is legally arrested for the commission of a crime, the officers have a right to search him and his immediate surroundings for tools, implements and instrumentalities which may be used to commit the crime for which such person is arrested.

The general rule of law cited by counsel for the state, hereinabove set forth is correct. Bullington v. State, 38 Okla. Cr. 214, 259 P. 876; Wallace v. State, 42 Okla. Cr. 143, 275 P. 354.

However, we do not believe the factual situation here presented is such as to bring the search herein within this rule of law. The constitutional provision protecting a person, his house, papers' and effects against unreasonable searches and seizures is strictly construed and unless it is clearly shown that the officers making the search complied with the legal prerequisites necessary to constitute a lawful search, the evidence seized by such unreasonable search wiil be suppressed upon timely objection by the accused.

It has been held in many cases that the search of an automobile without a search warrant, and not as an incident of a legal arrest, or without personal knowledge by the officer that it contained intoxicating liquor, but upon mere suspicion is in violation of art. 2, sec. 30, of the State Constitution, and the evidence obtained by such a search is inadmissible. Hamner v. State, 44 Okla. Cr. 209, 280 P. 475; Thomas v. State, 32 Okla. Cr. 57, 240 P. 133; Bowen v. State, 50 Okla. Cr. 36, 295 P. 623; Lamb v. State, 59 Okla. Cr. 360, 60 P. 2d 219; Hoppes v. State, 70 Okla. Cr. 179, 105 P. 2d 433, 434.

The general rule of law applicable in these cases is stated in Hoppes v. State, supra:

“Whether a search of or seizure from an automobile, parked on a public street, without a warrant, is or is not unreasonable within the meaning of the constitutional provision, forbidding unreasonable searches and seizures, is a judicial question to be determined in each case in view of all the facts and circumstances under which the search or seizure is made.”

case not even know the automobile belonged to the accused. The defendant, at the time of his arrest, told them his name was Johnson and that he came to the tavern in a taxi. The defendant did not admit the ownership of the car until after the officers had unlocked it and found a suitcase in the back end with defendant’s name inscribed on it. The search of the automobile by the officers was solely upon suspicion. They did not know defendant and had no personal knowledge that the automobile which they searched was the defendant’s. Their sole ground for the search was the hearsay statement of a bystander that “The old man came out here in that Pontiac.”

In the case of Riddle v. State, 73 Okla. Cr. 419, 121 P. 2d 1014, 1015, it is stated:

“The right of search in case of arrest is of the person and immediate surroundings of the arrested person. It does not carry with it the right to search buildings and places other than the immediate surroundings of person arrested.”

Since the defendant was not in the automobile at the time of his arrest, nor even close to it, we do not feel that the rule of law giving the officers a right to search the immediate surroundings of a person arrested for the commission of a crime for instrumentalities which might have been used in the commission of the crime for which the accused is arrested could be extended under the facts in this case to justify the search of defendant’s automobile, which was parked several cars away from the place where the defendant was standing at the time of his arrest.

For the reasons hereinabove stated, it is our conclusion that the trial court erred in overruling the motion to suppress evidence presented by the defendant.

The judgment of the superior court of Creek.county is accordingly reversed and defendant discharged.

BAREFOOT, J., concurs. DOYLE, J., not participating.


text:
    Ex parte PAT WRIGHT.
    No. A-10477.
    Feb. 2, 1944.
    (145 P. 2d 772.)

      O. H. Wliitt, of McAlester, for petitioner.
    Randell S. Cobb, Atty. Gen., and Sam H. Lattimore, Asst. Atty. Gen., for respondent.
   BAREFOOT, J.

This is an original proceeding in habeas corpus instituted by the petitioner, Pat Wright, to secure his release from the State Penitentiary, where he is now confined by reason of a judgment and sentence of the district court of Pottawatomie county, Okla., entered on April 21, 1941, sentencing him to serve a term of 12 years for the crime of burglary in the second degree, he having been previously convicted in the district court of Sequoyah county, Okla., on January 20, 1932, and served a term of five years in the State Penitentiary.

Petitioner has heretofore filed a petition for habeas corpus before this court, and the same was denied on December 16, 1942. See In re Wright, 75 Okla. Cr. 400, 132 P. 2d 351.

It is now contended by counsel for petitioner that petitioner himself prepared the original petition without the aid or assistance of counsel, and that the same did not present the question here presented, and that petitioner is now being held by reason of a void judgment and sentence, and that he is entitled to be discharged.

Counsel cites in support of this contention decisions from this court in which defendants were charged with the crime of being “second offenders,” and in which the court held that there was no such crime under the statutes of this state, and the petitioners were discharged on habeas corpus.

The facts in the instant case are not the same as the facts in those cases. Petitioner attaches to his petition a copy of the information under which petitioner was tried and convicted, and a copy of the judgment and sentence. The information charges him with burglary in the second degree in Pottawatomie county. It then charges him as a second offender, by reason of having been previously convicted in Sequoyah county, and having served a term of five years in the penitentiary under such judgment and sentence. The copy of the judgment and sentence attached to the petition reveals that defendant was sentenced for the crime of burglary in the second degree and in compliance with the verdict returned by the jury.

We have held that the “second offense” statute 21 O. S. A. 194-1 § 51, only goes to the increase of the punishment, and is not a part of the offense charged. O’Neil v. State. 76 Okla. Cr. 107, 134 P. 2d 1033; Long v. State, 77 Okla. Cr. 174, 140 P. 2d 600, 602: Ex parte Shockley, 78 Okla. Cr. 101, 144 P. 2d 118; Ex parte Weaver, 60 Okla. Cr. 290, 64 P. 2d 925.

Tt is not necessary that it be stated in the verdict that the defendant is found guilty of the second offense. The majority rule upon this question is stated in 58 A. L. R. 93, as follows:

“It appears to be the majority rule that, on a charge of a ‘second’ or ‘subsequent offense,’ it is not essential that the verdict of the jury should find specially as to the fact of a prior conviction, but it is sufficient if, from the verdict itself, it is apparent that the jury has passed on the issue of the prior conviction.” See the cases cited in this note.

It is further contended -that the allegations of the information were not definite and certain, and that the allegations were not sufficient to give the court jurisdiction.

These were questions that should have been raised by demurrer or motion to quash, and brought to this court by appeal, and not by habeas corpus. However, we have examined the information and do not find it insufficient under the decisions of this' court. White v. State, 58 Okla. Cr. 401, 54 P. 2d 214.

We have examined the authorities cited in the brief of petitioner and do not find anything therein which would justify us in holding the judgment and sentence under which petitioner was committed was void.

For the reasons above stated, the demurrer to the petition filed by the Attorney General on behalf of the warden of the penitentiary should be sustained, and the writ of habeas corpus should be denied.

It is so ordered.

JONES, P. J., concurs. DOYLE, J., not participating.


author: JONES, J.

text:
    MELBERT HUDSON v. STATE.
    No. A-10067.
    Feb. 2, 1944.
    (145 P. 2d 774.)

      O. J. Bennett, of Fairfax, for plaintiff in error.
    Randell S. Cobb, Attyl Gen., and J. Walker Field, Asst. Atty. Gen., for defendant in error.
   JONES, J.

The defendant, Melbert Hudson, was •charged by information filed in the district court of Osage county with the crime of burglary in the second degree, after having theretofore been convicted of burglary in the second degree and also having previously been convicted of the crime of destroying public property, each of said prior convictions being a felony under the laws of Oklahoma. In accordance with the verdict of the jury, the defendant was sentenced to the minimum imprisonment provided for said offense, towit, the term of ten years in the State Penitentiary.

At the time of the arraignment of the accused in the district court, counsel was appointed to represent the defendant and said counsel thereafter, in all proceedings, appeared in behalf of said defendant. After the appeal was lodged in this court, counsel for defendant filed a brief urging three propositions for a reversal of this case. The Attorney General filed a motion to strike the case-made. Subsequent thereto and after the submission of the case for final disposition, the Attorney General withdrew his motion to strike case-made and filed an answer brief.

We shall consider the three contentions of the defendant in the order they were presented in his brief.

Tt is first, contended that the Habitual Criminal Act, 21 O. S. 1941 § 51, should not apply to a person whose only prior sentence was to the State Reformatory at Granite; it being argued that the word “reformatory” in itself showed that the commission of a person to said institution was not only for the purpose of punishment but mainly it was meant to apply to those of tender years who had committed petty offenses for the purpose of their reformation, and that since said Habitual Criminal Act refers to imprisonment in the penitentiary it could in no wise apply to one who had been convicted but committed to the State Reformatory at Granite.

The Habitual Criminal Act, supra, reads as follows:

“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 punishable by imprisonment in the penitentiary for any term exceeding five years, such person is punishable by imprisonment in the penitentiary for a term not less than ten years.
“2. If such subsequent offense is such that, upon a first conviction the offender would be punishable by imprisonment in the penitentiary for five years, or any less term, then the person convicted of such subsequent offense is punishable by imprisonment in the penitentiary for a term not exceeding ten years.
“3. If such subsequent conviction is for petit larceny, or for any attempt to commit an offense which, if committed, would be punishable by imprisonment in the penitentiary, then the person convicted of such subsequent offense is punishable by imprisonment in the penitentiary for a term not exceeding five years.”

57 O. S. 1941 § 281 pertains to the establishment of the State Reformatory at Granite and reads as follows:

“There is hereby created, located and established within one mile of the corporate limits of the town of Granite, Greer county, the Oklahoma State Reformatory. All persons between the ages of sixteen and twenty-five years heretofore convicted of any crime whose punishment is by imprisonment shall be confined at either the Oklahoma State Reformatory or the State Penitentiary in the discretion of the State Board of Prison Control; and all persons between said ages hereafter convicted of crime, whose sentence to imprisonment shall be not to exceed five years, shall be confined at either the Oklahoma State Reformatory or the state penitentiary, in the discretion of the court sentencing said persons to imprisonment. The Oklahoma State Reformatory shall be under the general charge and management of the said board of control.”

57 O. S. 1941 § 284 further provides:

“It shall be the duty of the courts of Oklahoma to sentence all as hereinbefore specified persons who shall be convicted of crime and whose punishment is imprisonment to the penitentiary at McAlester or to the Oklahoma State Reformatory at Granite, as hereinbefore provided.”

It is apparent from this statute that the penal institution at Granite, although termed by its name as the State Reformatory, is in reality a sub-prison or penitentiary. Under the express terms of the act, discretion was vested in the trial court to sentence persons between the ages therein stated to either the State Reformatory or the State Penitentiary. The records of this court will disclose that some of the most hardened criminals involved in some of the appeals disposed of by us were inmates of the penal institution at Granite. We do have a state training school for juvenile offenders at Pauls Valley, 10 O. S. 1941 ch. 12. It is entirely distinct, however, from the penal institution at Granite. No cases are cited by counsel for ■defendant to sustain his proposition and we feel Nat under the reasonable, interpretation of our statutes this contention is without merit.

It is next contended that the court erred in overruling the demurrer of defendant to the evidence of the state. A short summary of the evidence will be sufficient to refute this contention. The defendant was charged with the burglary of the house of one John Hickey. Each of these parties was of Osage Indian descent and had lived as neighbors in the town of Fairfax for many years. The defendant had visited in the Hickey home and had knowledge of the fact that Hickey kept a large number of dimes in a dresser drawer. At the time in question Hickey and his wife went to a motion picture show about 7 p. m. When they returned home two hours later they noticed the screen had been cut, the hook unfastened and the window was open. TTpon entry into the house they found that approximately $30 in dimes had been taken from the dresser drawer. The police officers were notified. The defendant was arrested a few minutes later in a car with two companions iu front of a tavern where he had just paid for three packages of cigarettes and three bottles of beer with dimes. The arresting officer searched the defendant and found $27 in dimes; later at the city jail he found another dollar in dimes.

The evidence further showed that after the policeman had taken the defendant to the city jail, the defendant grabbed the officer’s pistol and fled. He was later arrested in the town of Ttalston.

The court clerk was called to the witness stand upon behalf of the state to prove the prior convictions, at which time the following proceedings occurred:

“Mr. Fink: (Attorney for Defendant) Now, this witness is for the purpose of proving the previous offenses and we can save the time of the Court by admitting the allegation in the Information with regard to former offenses.
“Mr. Carman : (County Attorney) Well that obviates the necessity of proof.
“Mr. Finli: That is correct.
“Mr. Carman: And that he is the same defendant as alleged in the Information.
“Mr. Fink: That is correct, yes sir.”

Tiie only evidence interposed on behalf of defendant was the testimony of defendant himself. He admitted entering the Hickey home through a window and taking the dimes. He further testified that he and the prosecuting witness were good friends and that he had been to Hickey’s home several times, both while Hickey was there and while he was away, but on this particular night when he took the money he went to see Hickey and found no one at home. That he ivas wanting some money to buy some liquor to go on a spree. That he unhooked the screen, entered the house and took the dimes as related by the state’s witnesses. That he intended to buy some whisky and take it back and divide it with Mr. Hickey. That he seized the officer’s gun and fled because he did not want to go back to the penitentiary.

It is unnecessary to comment at very great length on this evidence. The possession of the stolen property by the defendant shortly after the burglary had been committed, his flight from, the jail, his acquaintanceship with the Hickey home and knoivledge of the fact that the dimes were hidden in the house were sufficient circumstances to make a prima facie case. The defendant, in attempting to explain his possession of the stolen property, admits his guilt of burglary. The explanation which he offered was not even a defense as he does not contend that Hickey knew that he was entering his home or had given him permission to do so, but was rather an attempt on the part of the defendant to justify his act by reason of the fact that he and Hickey were friends and he felt that it would be all right with Plickey.

It is next contended that the court erred in allowing the witnesses Jim Clark and Lee Reddick, over the objection of defendant, to testify to matters wholly irrelevant to the issue, which testimony prejudiced the jury against defendant.

The testimony objected to related to the escape by the defendant from the officers. It detailed the manner in which tiie escape was perfected and the details surrounding his arrest the next day.

It has been frequently held by this court that the state, as a part of its case, may prove the flight of the defendant as a circumstance tending to prove his guilt. Pittman v. State, 8 Okla. Cr. 58, 126 P. 696; Almerigi v. State, 17 Okla. Cr. 458, 188 P. 1094; Littrell v. State, 21 Okla. Cr. 466, 208 P. 1048; Quinn v. State, 52 Okla. Cr. 81, 2 P. 2d 970.

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

“The main contention is that the court erred in permitting the state to offer testimony of the difficulty in the elevator. The state insists this evidence was admissible as showing an attempt to escape. Evidence of resistance to arrest, flight, escape or attempt to escape, is generally held admissible as showing a consciousness of guilt. The presumption arising from such conduct may be rebutted, and it is for the jury to say whether or not the conduct is due to a consciousness of guilt. 1 Wig. on Ev. 276; People v. Talbe, 321 Ill. 80, 151 N. E. 529; Cox v. State, 25 Okla. Cr. 252, 220 P. 70. The surrounding facts and circumstances in this case render this evidence competent. Unexplained as it was, the jury must have believed the attempt to use the pistol was in an attempt to escape.”

Although the above three propositions are all of the ones which were presented in the brief of the defendant, this court has carefully examined the entire record to determine whether, in addition to the alleged errors complained of:, there might be some fundamental error committed which would justify the reversal of the judgment of conviction. We did this in view of the fact that a member of this court is of the opinion that certain of the instructions which were given, which are set forth in the dissenting opinion, are fundamentally erroneous so as to require a reversal. The two instructions to which particular objection is made by said member of this court could have been given in better form. We do not approve of their wording. In a close case the giving of such instructions might be grounds for a reversal of the conviction.

The-fact that counsel for defendant, who very energetically fought for the rights of his client throughout the trial, did not object to either of these instructions is evidence to us that he did not consider them unfavorable to his client. Regardless of any admissions made by defendant at the trial, it was still the function of the jury to determine as a fact that the defendant had suffered the prior convictions as alleged in the information and they should have been so instructed. But in view of the record, wherein the defendant admits in his own testimony the two prior convictions, and further admits his guilt of the crime charged against him, such instructions must be considered as harmless error.

22 O. S. 1941 § 1068 is clearly applicable to the record as here presented. Said statute provides:

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

The jury only gave the defendant the minimum sentence. Surely this court would be making mountains out of molehills and subordinating substance to shadows if we would reverse this case because of a technically defective instruction, not objected to at the time of trial, nor raised by counsel on appeal, and which did not prejudice the defendant.

The issues mentioned in the dissenting opinion as to the failure of the court to provide the accused with counsel and of failure to postpone the sentence of defendant for two days after the verdict are so contrary to the record and without merit as to not warrant prolonging this opinion by a lengthy discussion of the same.

With reference to the appointment of counsel the record discloses:

“September 16, 1940.
“No. 3438 — State of Oklahoma vs. Melbert Hudson
“Called on arraignment, and the County Attorney is present for the state. Defendant is present in person without counsel. Defendant is fully advised of his constitutional rights and he states that he does desire to have counsel appointed. Information is read and copy of same is served on him in open court. He waives further time to plead and now pleads not guilty. Bond is fixed in the sum of $2500.00. L. O. Fink is appointed to represent defendant.”

We shall not assume that merely because the appointment of counsel to represent defendant is set forth in the last line of the minutes showing the proceedings on arraignment of accused, it means that counsel was not appointed until after the plea of not guilty was entered. The record discloses that counsel appointed for defendant appeared at all proceedings thereafter on behalf of accused. He contested the state every inch of the way. Considering the fact that his client had absolutely no defense, it is our view that he very ably protected the interests of his client when the defendant escaped with only the minimum punishment. We direct attention to the fact that counsel was appointed on September 16, 1940. The trial commenced on November 7, 1940. During the interim between the appointment of counsel and the beginning of the trial, no application was made to withdraw the plea of not guilty and enter a plea challenging the jurisdiction of the court or attaching the information.

We think a fair inference from the record is that counsel was appointed at the time the accused indicated his desire to have counsel to assist him, and that no attack was made on the information at the time of arraignment or later because the information disclosed no defects and it would not benefit the accused to interpose an objection to it. But even though counsel was appointed at the time of arraignment, after a plea of not guilty was entered, our conclusion under the record would be the same. Tf counsel had made a request to withdraw the plea of not guilty and present a preliminary pleading, which ■request had been denied, then a different situation would have been presented.

In connection with the pronouncement of judgment and sentence, the record discloses that the verdict was returned on November 7, 1940. On November 8, 1940, motion for new trial was filed. On November 18, 1940, motion for new trial was overruled and sentence was pronounced. The written journal entry of judgment and sentence was filed on November 27,1940, and on the same date defendant was transported to the State Penitentiary.

The basis for the reasoning advanced in the dissent regarding the failure of the court to postpone the pronouncement of sentence for two days after the verdict was rendered is caused by the recitation in the journal entry of judgment and sentence that sentence was pronounced on November 7th. The order overruling the motion for new trial recites that the court heard the argument on November 18th and overruled the motion at that time and thereupon sentenced the defendant. We think the insertion of the date November 7th in the judgment and sentence which was filed on November 27th was clearly a clerical error. Notwithstanding that, however, the right to have the pronouncement of judgment postponed for two days after verdict is one that may be waived, and where the record is silent, it is presumed that a waiver of time was made. Jones v. Territory, 4 Okla. 45, 43 P. 1072; Kerkendall v. State, 5 Okla. Cr. 570, 115 P. 612; Ex parte Gilbert, 71 Okla. Cr. 268, 111 P. 2d 205.

The issues raised in the dissenting opinion were not briefed by counsel for defendant, nor mentioned by him in oral argument, and consequently the same were not discussed by the state in its brief. It is sufficient to state that this court will not lend its approval to uphold extremely technical propositions which tend to obstruct and defeat the administration of justice. No clearer example of the utter defeat of law enforcement could be found than to follow to its logical conclusion the reasoning in the dissenting opinion. We are of the opinion that the accused has had a fair and impartial trial and that there are no material errors in the record which would justify or require this court to reverse the judgment of conviction.

The judgment of the district court of Osage county is accordingly affirmed.

BAREFOOT, J., concurs. DOYLE, J., dissents.


text:
    Ex parte MIKE GAULT et al.
    No. A-10439.
    Feb. 10, 1944.
    (146 P. 2d 133.)

      Hulsey & Hulsey, of McAlester, for petitioners.
    Eandell S. Cobb, Atty. Gen., and J. Walker Field, Asst. Atty. Gen., for respondent.
   JONES, P. J.

The petitioners, Mike Gault and Allen Gault, instituted this original proceeding in habeas corpus in an effort to secure their release from confinement in the State Penitentiary.

Their petition alleges in substance that they were taken before the district court of Ouster county on July 2, 1938, and entered their pleas of guilty to the crime of burglary and were sentenced to serve seven years imprisonment in the State Penitentiary. That at the same time the petitioner Mike Gault pleaded guilty to the charge of assault with a deadly weapon with intent to kill and received a term of ten years imprisonment, which was to runconcurrently with the seven year sentence on the burglary charge. That immediately after they were sentenced in Custer county, and on the same day, the petitioners were transported to Beckham county and were jointly arraigned in the district court of Beckham county on a charge of robbery with firearms. That petitioners were required to plead to said charge of robbery with firearms without the benefit of counsel, without being given time after arraignment in which to plead, and time for pronouncement of sentence after entering their pleas of guilty. That no preliminary examination was held in Beckham county on the robbery with firearms charge, but that said petitioners were required to enter their pleas of guilty and the petitioner Mike Gault was sentenced to serve 30 years in the State Penitentiary, and the petitioner Allen Gault was sentenced to serve 33 years in the State Penitentiary on said cbarge in Beckham county. That the petitioners have noAV served enough time in the State Penitentiary, when given credit for their good behavior, to entitle them to their release by reason of the sentence in Custer county on the burglary charge. That the judgment and sentence of the district court of Beckham county is void and petitioners are entitled to their discharge because of the matters hereinabove alleged.

A rule to show cause was issued and the warden of the State Penitentiary, in his response, attached copies of the .commitments issued by the district courts of Custer county and Beckham county, together with certified copies of the judgments and sentences pronounced against petitioners in each of the cases in those respective counties as his justification for confinement of said petitioners.

The petitioners were brought before the court and each of them testified at length concerning the facts surrounding their arrest and pleas of guilty in the several cases filed against them. The proof showed that these two men had formerly been residents of Dewey county, Oklahoma. That prior to the commission by them of the various crimes in Custer county and Beckham county, herein involved, they had each been convicted and each served a term of imprisonment in the State Penitentiary at Granite; the petitioner Mike Ganlt having served a term upon conviction in Kingfisher county for the crime of robbery ; and the petitioner Allen Gault having served a term from Dewey county upon a charge of larceny of an automobile. The petitioner Allen Gault had also been tried once on a larceny charge which resulted in a hung jury.

The men each testified that they were charged with having committed a robbery in Beckham county on June 4, 1938. That Mike Gault was arrested on June 7, 1938, and Allen Gault on June 25, 1938. On June 21,1938, Mike Gault was transported to the penitentiary at Granite for safekeeping, and on June 25, 1938, Allen Gault was taken to the Granite jirison for safekeeping. That on July 1, 1938, they were brought back to Custer county and were taken to the county attorney’s office. That the county attorney of Custer county and the county attorney of Beckham county were each present and discussed with them the alleged commission by them of the various crimes in those two counties. That the petitioners then and there made an agreement with the two county attorneys that they would plead guilty to all charges then filed against them if they would be allowed to get off. with a total of 25 years. That it was with this understanding that they entered their pleas of guilty to the charges which were filed against them, but that instead of receiving a total sentence of 25 years they received a total sentence of 40 years imprisonment in the State Penitentiary.

The testimony of petitioners contradicted that part of their petition which alleged that they did not have a preliminary examination as they each admitted that they were taken before a justice of the peace in each county and waived a preliminary examination. They each further testified that at the direction of the court the county attorney read the information to them upon their arraignment. They further testified that before being sentenced the county attorney made a statement to the court concerning the faéts and that the court, in pronouncing sentence, followed the recommendation of the county attorney.

The petitioners’ evidence then resolves their contentions on these points:

(1) They had no counsel and were not advised of their right to counsel.

(2) They were inexperienced in court procedure and did not know what they were doing.

As to their first proposition that they had no counsel and were not advised of their right to counsel, their evidence is contradicted by the affidavit of the district judge, T. R. Wise, who stated that he advised them fully of all their statutory and constitutional rights, but that said petitioners waived their right to counsel, their right to time in which to plead after arraignment and their right to time for pronouncement of sentence after the plea of guilty was entered, and they each'expressed a desire to enter a plea of guilty and be sentenced instanter. The sentence that was assessed the petitioners was based upon the recommendation of the county attorney of Beckham county.

The case of Ex parte Meadows, 70 Okla. Cr. 304, 106 P. 2d 139, 146, relied upon by petitioners, is not analogous to the facts in the instant case. In the Meadows case the petitioner Meadows and his companion Wilkerson were both minors. Neither of them had ever before been confined in jail. Meadows and Wilkerson were admittedly illiterate and inexperienced in court proceedings. Under the record in the Meadows case it was clear that the district courts of Tillman and Comanche counties were too hasty in committing those two inexperienced minors to the State Penitentiary. In forty-eight hours after their arrest in Tillman county they had been sentenced in both counties on the charges filed against them.

In the instant case the petitioners had been arrested several days before they entered their pleas of guilty. They were adults and each had formerly served a term of imprisonment in the State Penitentiary at Granite. Having been in trouble before and having had attorneys to advise with them and defend them before a jury, they certainly could not be classified as inexperienced in court proceedings. It is remarkable how much knowledge of court procedure an inmate of the State Penitentiary acquires in one year. The petitioners’ testimony disclosed that they were hardened criminals and that they bargained for some time with the county attorneys of Custer and Beckham counties in trying to secure, as they testified, “the best deal possible.” They both knew all about the charges Avhich had been filed against them and do not contend that they Avere innocent of those charges. The robbery with firearms charge in Beckham county involved the taking of $9,300 in cash and securities.

In the case of Ex parte Meadows, supra, it is stated:

“Under Bill of Bights, sec. 20 [article 2], Okla. St. Ann. Const., an accused has the right to consult with counsel and to be fully advised as to his rights, and as to the consequences of his act before entering his plea to the indictment or information.”
“A plea of guilty should be entirely voluntary, and should be made by one competent to know the consequences thereof, and should not be accepted until after the defendant has been fully advised by the court of his rights and the consequences of his plea.”
“A person prosecuted for a crime may waive the rights guaranteed to him by Bill of Rights, relating to trial by jury, right to be heard by counsel, etc.”
“Whether one accused of crime has waived his right to the assistance of counsel for his defense must depend in each case upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused.”

It is established in this jurisdiction that the writ of habeas corpus will not lie to correct purely procedural errors, and is not designed to interrupt the orderly administration of the laws by a competent court acting within the limits of its jurisdiction. Ex parte Grant, 32 Okla. Cr. 217, 240 P. 759; 12 R. C. L. 1192.

The constitutional provisions guaranteeing to every person in a criminal action certain rights are: First, those in which the public generally, and as a community, is interested, as well as the accused, and which are jurisdictional as affecting the power of the court to try the cause; second, those more in the nature of privileges which are for the benefit of the accused alone, and do not affect the general public. The former may not be waived, the latter may.

Among the legal, safeguards which have been adopted for the benefit of the accused, which may be waived, are the following: The right to have 24 hours in which to plead after arraignment; the right to be furnished with a copy of the information; the right to 48 hours after conviction before sentence may be passed; the right to be confronted by the witnesses; the right to trial by jury; the right to have counsel to represent him; the right to a subpoena for his witnesses. Ex parte Gilbert, 71 Okla. Cr. 268, 111 P. 2d 205.

The only consideration for this court is whether, under the facts in the instant case, there was an intelligent waiver of these rights. We think this must be answered in the affirmative. After all of the evidence has been sifted, the only contention of the petitioners as to their being misled concerned the amount of punishment which was meted out to them. They contended that they thought that they would secure only 25 years in the State Penitentiary because of an agreement had with the county attorneys of the two counties involved, and that instead they received a total of 10 years imprisonment in the State Penitentiary. The records in the case and the other evidence contradict the petitioners upon this point. In addition to that, the petitioners themselves admitted that the district court, in pronouncing judgment, followed the recommendation of the county attorney. That when the county attorney made the recommendation of thirty years imprisonment for one petitioner, and 33 years imprisonment for the other petitioner, they voiced no objection.

Furthermore, the recommendation of the county attorney was purely advisory to the court and he was in no way bound to follow such recommendation. After hearing a statement of the facts surrounding the commission of the crime, it was the trial court’s duty to assess such uunishment upon the plea of guilty as seemed to him to be justified.

Tinder the facts and circumstances of this case, we do not feel that there has been such a denial of the rights of the petitioners that this court can say that the trial court lost jurisdiction during the course of the proceedings to pronounce judgment upon the plea of guilty.

The writ of habeas corpus is therefore denied.

BAREFOOT, J., concurs. DOYLE, J., not participating.