text:
    STATE ex rel. BRUMMETT v. HIGGINS, District Judge.
    No. A-10685.
    April 3, 1946.
    (167 P. 2d 924.)
    Hulsey & Hulsey and George L. Hill, all of Mc-Alester, for petitioner.
    Randell S. Oobb, Atty. Gen., and Tom G. Haile, Go. Atty., of McAlester, for respondent.
   JONES, P. J.

This is an original action instituted by the petitioner, Burnice Brummett, wherein the petitioner sought a writ of mandamus directed to the district court of Pittsburg county, Oklahoma, to force the dismissal of an action pending in said district court, in cause number 4695.

Heretofore an original petition was filed by petitioner in this court in cause No. A-10613, wherein the petitioner sought to enforce the dismissal of cause No. 4885 in said district court on the grounds that petitioner had not been afforded a speedy trial as contemplated by the Constitution and Statutes of the State of Oklahoma. That of date of April 11, 1945, an order of mandamus was issued by this court for the dismissal of said cause in the district court .then pending against this petitioner. Brummitt v. Higgins, 80 Okla. Cr. 183, 157 P. 2d 922.

Thereafter pursuant to the mandate of this court said cause was dismissed by the district court. Subsequently the county attorney of said county filed a new information charging the petitioner with the commission of the identical crime charged in case No. 4385. The original petition in this cause was then filed.

It appearing to the court that prior to this time and after the petition was assigned for hearing in this ■court, said cause No. 4695 in the said district court has been dismissed on motion of the county attorney of Pitts-burg county, and all questions raised in the petition have become moot, and that this cause should be dismissed..

It is therefore ordered that this cause No. A-10685 be and the same is hereby dismissed for reason that all questions therein raised have become moot.

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


source: Caselaw Access Project

author: JONES, P. J.

license: Public Domain

text:
    LUCILLE YOUNG v. STATE.
    No. A-10562.
    April 3, 1946.
    (167 P. 2d 922.)

      Walter Billingsley, of Wewoka, for plaintiff in error.
    Bandell S. Cobb, Atty. Gen., and Sam H. Lattimore, Asst. Atty. Gen., for defendant in error.
   JONES, P. J.

The defendant, Lucille Young, was charged in the district court of Seminole county with the crime of murder; was tried, convicted of manslaughter in the first degree, and by verdict of the jury was sentenced to serve four years in the State Penitentiary, and has appealed.

The only proposition presented by this appeal is whether the evidence is sufficient to sustain the judgment of conviction.

The case was presented to the jury on a stipulation between the state and the defendant and the testimony of one witness. No evidence was offered on behalf of the defendant. The defendant was charged with killing her husband, Willie Young, by stabbing him with a pocketknife. After the jury was impaneled, the following stipulation was agreed upon between the county attorney and counsel for defendant:

“It is stipulated and agreed by and between tbe State and the Defendant, that Willie Young died as a result of a knife wound in tbe region of his heart inflicted by the defendant at Boney Edwards’ home three miles south of Seminole on the date alleged in the information, in Seminole County, Oklahoma.”

In addition to this stipulation, J. W. Edwards testified that the defendant and her husband lived on his farm about three miles south of Seminole. That on July 25, 1943, a girl ran into his house and told him there was some trouble at his barn. That he went to the barn and saw Willie Young hunched down against the door. His wife was standing nearby. He asked Young what was the matter and Young said, “My wife has killed me.” Young ran his hand in under his shirt and brought it out all covered with blood. Young further said that he had gone to the airport garage to have his car fixed and that the defendant had told him that if he did not return home by 2:30 there would be trouble. That when he did return, she kept fussing at him. That he went down to the barn to milk and the defendant continued to fuss with him until he finally told her- to keep still or he would take “That board and whip you.” The deceased indicated a piece of lath about two inches wide and about three feet long. The deceased said he was going to die and wanted the witness to take him to a doctor. The defendant was there and said she hoped that she had killed him. The witness then called an ambulance, but Willie Young died before the ambulance arrived. On cross-examination, the witness testified that when the officers arrived, the defendant told them that the deceased had struck her.

Under this evidence, the killing of the ¡ deceased by the defendant was proved. 22 O. S. 1941 § 745, provides:

“Upon a trial for murder, the commission of the homicide by the defendant being proven, the burden of proving circumstances of mitigation, or that justify or excuse it, devolves upon him, unless the proof on the part of the prosecution tends to show that the crime committed only amounts to manslaughter, or that the defendant was justifiable or excusable.”

Since the homicide was proved to have been committed by the defendant and there is no testimony on the part of the only witness presented by the state to show that the defendant was justifiable in taking the life of the deceased, it is apparent that the evidence is sufficient to sustain the conviction for manslaughter in the first degree. In addition to that, the jury was merciful with the defendant in that they assessed the minimum punishment for the commission of such offense.

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

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


author: BAREFOOT, J.

text:
    Ex parte GILBERT WADE.
    No. A-10556.
    April 3, 1946.
    (167 P. 2d 920.)

      Hulsey & Hulsey, of McAlester, for petitioner.
    Randell S. Cobb, Atty. Gen., and Sam H. Lattimore, Asst. Atty. Gen., for the Warden, respondent.
   BAREFOOT, J.

Petitioner, Gilbert Wade, has filed his petition for writ of habeas corpus alleging that he is unlawfully restrained of his liberty by Hon. R. B. Conner, Warden of the State Penitentiary, at McAlester. Attached to his petition is a certified copy of the information, a copy of the appearance docket of Greer county, and a copy of the judgment and sentence; all of which reveal that petitioner was charged with the crime of murder in Greer county, and was by the court sentenced-to serve a term of life imprisonment in the State Penitentiary and which he is now serving.

A response to the petition has been filed by the Attorney General on behalf of the warden. Attached to tlxe response is an affidavit of Jack Sasseen who was county attorney of Greer county at the time petitioner entered his plea of guilty, the affidavit of Herschal K. Ross who was court clerk and present at the time the plea of guilty was entered, also a copy of a written statement made by the defendant after the date of the murder charge; together with the prison record of defendant, which reveals that petitioner is serving his fourth term in the penitentiary, and photostatic copy of the judgment and sentence.

Petitioner, in reply to the response of the warden, has filed an affidavit, contradicting the affidavits attached to the response.

The general rule of this court as often announced is that where a prisoner is in custody under sentence of conviction and seeks his discharge on habeas corpus the inquiry is limited to the questions whether the court in which the prisoner was convicted had jurisdiction of the person of the defendant, and of the crime charged, and if the court had jurisdiction to render the particular judgment. However, it has been held that where one was denied his constitutional rights, and by reason thereof the judgment and sentence of the court was therefore-void, relief could be had by habeas corpus.

Here petitioner entered a plea of guilty. No attempt was made to appeal from the judgment and sentence. The record does not disclose that the court appointed an attorney to defend him. The statute does not require that an attorney be appointed, but that the court shall inform him of his right to the aid of counsel and to appoint one if he so desires. This is as far as the statute goes. 22 O.S. '1941, § 464 provides:

“If the defendant appear for arraignment, without counsel, he must be informed by the court that it is his right to have counsel before being arraigned, and must be asked if he desire the aid of counsel. If he desires, and is unable to employ counsel, the court must assign counsel to defend him. * * *”

From our experience upon the bench, and after the examination of many records, it is our judgment that the administration of justice would be best subserved in this state by the passing of a law which requires the appointment of counsel for a defendant, at least when charged with a capital offense, prior to permitting a plea of guilty to be entered, and that testimony should be taken by the court prior to entei’ing judgment and sentence. This, however, is only our opinion, and this matter is for the consideration of the Legislature as in their judgment is deemed wise. It is for us to only construe and interpret the law as it is written. We have often held that one has the right to enter a plea of guilty. Bean v. State, 27 Okla. Cr. 228, 226 P. 115; Brown v. State, 40 Okla. Cr. 1, 266 P. 491; Kennedy v. State, 66 Okla. Cr. 318, 92 P. 2d 384.

The record in this case reveals that the petitioner entered his plea of guilty. The affidavit of the county attorney states that petitioner, both at the preliminary hearing before the justice of the peace and at the hearing before the district judge, was asked if he had an attorney, and was advised of his right to counsel, and of his right to have additional time to plead, and that he answered that he did not. The affidavit of Herschal K. Ross, the court clerk of Greer county, who was present at the time petitioner entered a plea of guilty in the district court, ivas attached to the response and it' corroborates the statement made by the county attorney. Also attached to the response is a statement of the defendant Tnade prior to his being arraigned and entering his plea. In this statement he gave the full details of the killing of the deceased by himself.

Petitioner presented his own affidavit in which he stated that he did not know the contents of'the statement 'which he signed, and which Avas attached to the response, and that it Avas prepared and presented to him, and signed by him, after he had been told by the deputy warden that he would be electrocuted if he did not sign the same and enter a plea of guilty. He also stated in his affidavit that he had been confined in the State Reformatory at Granite and had not been permitted to consult or communicate with his relatives or friends, though request had been made to do so.

The record reveals that the crime Avas committed on April 1, 1941’ that the preliminary examination was on May 21, 1941, and his plea of guilty Avas entered on May 27, 1941, and judgment and sentence entered on that date.

Prom the record as a Avhole, it can not be said that it justifies this court in granting the relief prayed for. The burden of proof is upon petitioner to sustain the allegations of his petition. Under the law and the decisions heretofore cited, we are of the opinion that this burden has not been met.

For the reasons stated, the petition for habeas corpus is denied.

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


author: BAREFOOT. J.

text:
    PAT MENDENHALL v. STATE.
    No. A-10520.
    April 10, 1946.
    (168 P. 2d 138.)

      F. E. Riddle, of Tulsa, for plaintiff in error.
    Randell S. Cobb. Atty. Gen., E. J. Broaddus. Asst. Atty. Gen., and Douglas Garrett, County Atty. of Muskogee County, of Muskogee, for defendant in error.
   BAREFOOT. J.

Defendant, Pat Mendenhall, was charged on three separate counts, in the district court of Muskogee county, with the crime of receiving stolen property. He was tried, convicted in each of the three cases, and sentenced to serve a term of five years in the State Penitentiary at McAlester in each case, the terms to run concurrently, and has appealed.

The record shows that three separate informations were filed against the defendant, charging him with the crime of having received property which had been stolen by Jimmie Myers and Kit Carson Green. In the information in case No. 7947, it was alleged that the property stolen consisted of four tires and four tubes of the value of $54, the property of Dr. John H. Walker of Muskogee; the second information, in case No. 7948, charged defendant with receiving one tire and one tube of the value of $23, the property of Harriett Bruce, of Muskogee; and the third information, in case No. 7949, charged defendant with receiving four tires and four tubes, of the value of $72, the property of W. P. Robinson, of Muskogee.

When the cases were called for trial, the county attorney dictated into the record an agreed statement by the terms of which the three cases, Nos. 7947, 7948 and 7949 were consolidated and tried together before the same jury, at the same time, and that separate verdicts should be returned in each case. It was further agreed:

“That in the event the defendant is convicted by the jury in more than one case that the court will be requested by the county attorney to sentence the defendant so that the sentences will run concurrently in each case.”

It is now contended by counsel for defendant who is prosecuting this appeal, but who did not appear in the trial of the cases below, that the court committed prejudicial error in permitting the trial of defendant upon three distinct and separate felonies together, and at the same time and before one and the same jury; and that the court erred in instructing the jury in compliance with the agreement that if defendant was found guilty by the jury in more than one case, that it had been agreed “on behalf of the state, that the court may sentence the defendant so that the sentences will run concurrently in each case.”

Counsel for defendant in his brief states and argues the proposition above stated, but does not cite any authority to sustain his contention. The state seems to be content with the statement that “He cites no authority.”

This court has recently had before it this identical question in the case of Booth v. State, 73 Okla. Cr. 67, 117 P. 2d 805, 806. In that case the defendant was charged in sis separate cases. The cases were consolidated, and all the evidence presented to the same' jury, which returned separate verdicts of guilt against the defendant in all six cases. Judge Jones, in delivering the opinion of the court, said:

“The procedure followed in these cases, in trying all of the cases at the same time, is very unusual. In so far as this court is advised, it is the first time such novel procedure has been used in criminal cases. Such procedure of consolidation is quite generally adopted in the trial of civil cases, but it is unusual for a defendant and his counsel to request or even agree to such a procedure. However, no question is raised as to this form of procedure. The district court had jurisdiction of the person and of the subject matter; and we see no valid reason why, if requested by the defendant, such procedure may not be followed.”

With reference to the instructions by the court, as above indicated, we are of the opinion that the defendant cannot now complain of the instructions. No exception Avas taken to the giving of the same. The instruction could have been of benefit to the defendant in the event of a conviction in more than one case. He should not be permitted to accept this benefit and then question its correctness. His counsel probably considered that if the sentences ran concurrently it would be to his benefit, and for this reason did not except to the giving of the same.

It is urgently contended that defendant has not been given a fair and impartial trial in this case, for the reason that the county attorney was permitted to ask leading questions, and this, notwithstanding the fact that no exception ivas taken by counsel for defendant to the asking of the questions. It is contended that 158 leading questions were asked, and each question is set out in defendant’s brief. We have read the record carefully, and find that many leading questions were asked. The county attorney, instead of permitting the witness to detail the facts, asked the questions in such a manner that the answer need only be “Yes”. But we do not find that the questions and answers are such that would deny to the defendant a fair and impartial trial. The witnesses gave fair and intelligent answers, and the testimony of the state’s witnesses was clear and convincing, and such as would entitle the jury to arrive at a verdict of defendant’s guilt. The defendant testified in his own behalf, and many admissions made by him no doubt were considered by the jury in arriving at a verdict of guilty. Green v. State, 81 Okla. Cr. 282, 163 P. 2d 554.

The contention of counsel now representing defendant in this appeal that he did not have a fair trial because he was not properly represented by his attorney, who was of his own choosing, cannot be sustained. The authorities cited by defendant do not sustain this contention. The case of People v. Barnes, 270 Ill. 574, 110 N.E. 881, 883, cited by defendant, says:

“The court was never requested to appoint counsel for him, nor was it ever intimated, so far as the record shows, until it was done in this court, that defendant had not been properly represented by counsel. The question is now raised by counsel who had no connection with the case until after the trial and conviction. The prosecution appears to have been conducted by one assistant state’s attorney, with no other assistance. It is very clear People v. Blevins, 251 Ill. 381, 96 N.E. 214, Ann. Cas. 1912C, 451, and Hayner v. People, 213 Ill. 142, 72 N.E. 792, relied on by defendant, are in no way applicable here. It has never been considered the duty of the court to advise or exercise any authority or control over the selection of counsel by a defendant who is able to and does employ the lawyer of his choice. Certainly it is the duty of the court in any criminal case to prevent oppression of the defendant, and see that he has a fair trial, but we find nothing in the record to indicate this duty was not performed by the court. * * *
“A court of review cannot reverse a judgment of conviction in a criminal case where, in looking backward over the trial, it might seem defendant’s counsel had made some tactical blunder. A judgment will not be reversed for failure of defendant’s counsel to exercise the greatest skill. People v. Anderson, 239 Ill. 168, 87 N. E. 917.”

It is contended that the court permitted the introduction of hearsay evidence, and for this reason the case should be reversed. This evidence was the testimony of the witness Billy Guy, a member of the police department of the city of Muskogee. He was permitted to testify, without objection or exception by counsel for defendant, to a conversation with Jimmy Myers and Kit Carson Green, the parties who had stolen the automobile tires and tubes with which defendant was charged with receiving, at the time of their arrest and while in the city jail. He was permitted to testify that these parties stated in this conversation that they had stolen the automobiles and stripped the tires and tubes from them, and the tires and tubes had been sold by them to the defendant. This evidence not being given in the presence of the defendant, was clearly hearsay, and if an objection had been made thereto, the court undoubtedly would have sustained the same. But it has often been held that a case will not be reversed by reason of the introduction of evidence which is inadmissible when no exception or objection was taken thereto, unless the admission of the same constitutes fundamental error. This is especially true where by the introduction of the inadmissible testimony, the fundamental rights of the defendant have not been denied, and in so considering the question all of the testimony in the case will be considered to determine whether the defendant has been given a fair and impartial trial. We will hereafter give a statement of the evidence in this case. Gritts v. State, 6 Okla. Cr. 534, 118 P. 673; Keeler v. State, 24 Okla. Cr. 206, 217 P. 228; Walters v. State, 57 Okla. Cr. 424, 48 P. 2d 875; Dyer v. State, 61 Okla. Cr. 202, 66 P. 2d 1104; Howard v. State, 70 Okla. Cr. 165, 105 P. 2d 440.

It is contended that the constitutional rights of the defendant were violated by reason of the search of the garage occupied by him, without a search warrant, at the time the four tires stolen by Myers and Green and sold to the defendant, were found.

When the officers went in search of the tires and tubes which had been stolen, they found the son of defendant in close proximity to an out-building. They were informed by him that his father did not live there, but lived at the Reed Hotel. The boy attempted to unlock the door, and one of the officers picked up something and broke the lock, and found four stolen tires. The defendant cannot complain of the search in this case, for the reason that no objection was made at the time the testimony was given. No motion was made to suppress the evidence. Gragg v. State, 72 Okla. Cr. 189, 114 P. 2d 491, and cases cited.

The defendant took the witness stand and admitted that he was in possession of the tires which were taken ¡by the officers from the garage. His defense was that lie had lawfully purchased them from Myers and Green. The jury evidently did not agree with his defense. Patton v. State, 43 Okla. Cr. 436, 279 P. 694; Davis v. State, 30 Okla. Cr. 61, 234 P. 787.

A judgment and sentence will not be set asid6 or a new trial granted on the improper admission of evidence unless the court from an examination of the entire record is of the opinion that the error complained of has probably resulted in a miscarriage of justice, or that it constitutes a violation of a constitutional or statutory right. Foreman v. State, 38 Okla. Cr. 50, 259 P. 176; Luker v. State, 60 Okla. Cr. 151, 62 P. 2d 255. See also Herren v. State, 74 Okla. Cr. 432, 127 P. 2d 384 and Sears v. State, 79 Okla. Cr. 437, 156 P. 2d 145.

The record reveals that a number of automobiles had been stolen in the city of Muskogee during the month of May, 1943. The automobiles were found in different parts of the county, where they had been stripped of tires, tubes and other accessories. The police officers arrested Jimmy Myers and Kit Carson Green, 20 and 16 years of age, respectively. They were placed in the city jail and confessed to stealing the automobiles and stripping them of the tires and accessories; and on the trial of this case testified to selling the stolen tires and tubes to the defendant. Both of these witnesses testified as to having made arrangements with defendant to buy the tires prior to the time they were stolen, and testified to numerous facts and circumstances which justified the jury in finding the defendant guilty of recovering stolen property.

We have heretofore reviewed the errors assigned. The defendant was found guilty by the jury in each of the three cases, and his punishment assessed at five years in the penitentiary, the sentences to run concurrently. For the reason that the sentences are to run concurrently, we do not think that justice demands a modification of the judgment and sentence. It is true that some errors were committed, as heretofore noted, but after an examination of the record as a whole, we are of the opinion that no fundamental error was committed which would justify a reversal' of this case, and that the judgment of the district court of Muskogee county should be affirmed. It is so ordered.

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


text:
    J. W. KUYKENDALL v. STATE.
    No. A-10686.
    April 10, 1946.
    (168 P. 2d 142.)
    Jerome Sullivan, of Duncan, 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, J. W. Kuykendall, was convicted in the district court of Stephens county of the crime of forgery in the second degree, and was sentenced to serve a term of one year in the State Penitentiary.

From the judgment rendered on April 5, 1945, an appeal was perfected by filing in this court on October 4, 1945, a petition in error with case-made attached.

The Attorney General has filed a motion to dismiss the appeal for the reason that after the judgment and sentence was pronounced against the defendant, he left the State of Oklahoma and went to the State of Texas, where he committed a series of offenses similar to the one for Avhich he was convicted in the district court of Stephens county. That he has been indicted by a grand jury of Hale county, Tex., a grand jury of Dawson county, Tex., and a grand jury of Lynn county, Tex., for the crime of forgery, allegedly committed in October, November, and December, of 1945, in each of said counties, respectively. That the defendant is now lodged in jail in Dawson county, Texas, and is beyond the jurisdiction of this court. That he left the State of Oklahoma and went beyond the jurisdiction of this Court without the leave of the court and because of his absence from the state, he Avill be unable to respond to any order or judgment that the Criminal Court of Appeals may issue in regard to his appeal.

A hearing was held before this court on February 13, 1946, at which time, certified copies of indictments which had been filed against the defendant in the State of Texas, for acts committed subsequent to his appeal filed herein, Avere received in evidence in support of the motion to dismiss the appeal. There was, also, introduced in evidence in support of the motion to dismiss the appeal a telegram dated February 12, 1946, received by the county attorney of Stephens county, from the clerk of the district court of La Mesa, Tex., in which it is stated that J. W. Kuykendall at that time was incarcerated in the Dawson county jail.

Counsel for the defendant, who was present at the hearing on the motion to dismiss, admitted that his client was in the State of Texas, but stated that he was not there voluntarily, but was taken out of the State of Oklahoma by extradition process from the Governor of Texas, which was honored by the Governor of Oklahoma, and that he will voluntarily respond to the judgment of the Criminal Court of Appeals in the event that his appeal is decided against him.

In Kilpatrick v. State, 71 Okla. Cr. 125, 109 P. 2d 514, it is held:

“Where a defendant leaves this state without proper permission during the pendency of an appeal to this court, he is in the attitude of a fugitive from justice, and thereby waives the right to have his conviction reviewed. It then becomes a matter within the discretion of this court whether, under the facts and circumstances, the appeal will be considered and determined.
“Held, where the defendant, after conviction of the crime of rape and during the pendency of his appeal to this court, left the state without permission and was indicted for a similar offense in another jurisdiction, his appeal should be dismissed.”

In Kilpatrick v. State, supra, this court stated in the body of the opinion:

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

Upon the proof submitted in support of the motion to dismiss the appeal, it is our opinion that defendant has waived his right to have his appeal considered and determined. The motion of the state to dismiss the appeal is, therefore, sustained and the appeal herein is hereby dismissed.

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


text:
    Ex parte H. C. STEVENS.
    No. A-10716.
    April 10, 1946.
    (168 P. 2d 136.)
    See, also, 81 Obla. Cr. 65, 160 P. 2d 415.
    Wimbisb & Wimbisb, of Ada, for plaintiff in error.
    Eandell S. Cobb, Atty. Gen., and'Sam H. Lattimore, Asst. Atty. Gen., for defendant in error.
   JONES, P. J.

This is an original proceeding in babeas corpus instituted by tbe petitioner, F. C. Stevens, to secure bis release from confinement in tbe State Penitentiary.

Tbe verified petition filed herein alleges that tbe petitioner was convicted in tbe district court of Murray county, on January 23, 1946, by a verdict of tbe jury of tbe crime of rape in tbe first degree and sentenced to serve a term.of 99 years in tbe State Penitentiary.

Tbe petition further alleged that tbe criminal complaint filed against him in tbe justice of tbe peace court did not allege the commission of any public offense by tbe defendant and that the original information filed against Mm in tbe district court of Murray county did not allege tbe commission of any public offense, but tbat before the date of the trial, tbe county attorney of Murray county amended tbe information without notice to tbe petitioner or bis attorneys by inserting sufficient allegations to make tbe amended information allege tbe commission of tbe crime of rape in tbe first degree. Tbat tbe petitioner objected to going to trial upon tbe amended information for tbe reason tbat be did not have an examining trial upon a criminal complaint charging him with a violation of any law of tbe State of Oklahoma. Tbat tbe trial proceeded over tbe objection of defendant and resulted in bis conviction as above set forth.

A demurrer was filed on behalf of the respondent by tbe Attorney General.

The petitioner has six months from tbe date judgment was pronounced against him in which to appeal to this court from said conviction. 22 O. S. 1941 § 1054. He has abundant time within which to perfect an appeal. Tbe matters complained of are properly matters which may be urged on appeal, but are not such questions as may be raised in a habeas corpus proceeding.

It is well-settled tbat tbe Criminal Court of Appeals in a habeas corpus proceeding will not look beyond the judgment and sentence of any court of competent jurisdiction as to mere irregularities of procedure, or errors of law on questions over which tbe court had jurisdiction. Ex parte West, 62 Okla. Cr. 260, 71 P. 2d 129. And tbat tbe writ of habeas corpus cannot be substituted for an appeal. Ex parte Thomas, 56 Okla. Cr. 258, 37 P. 2d 829; Ex parte Miles, 56 Okla. Cr. 69, 33 P. 2d 636; Ex parte Williams, 70 Okla. Cr. 377. 106 P. 2d 524.

We shall not go into an extended discussion of the question raised by the petitioner, as he may again raise this question in the proper manner by appeal, where the entire record of the trial proceedings will be before us for review. Neither the judgment and sentence pronounced against the petitioner nor the amended information are attached to his petition, but under the allegations of the petition, it is our conclusion that the petitioner is seeking- to present questions on habeas corpus which are properly matters which he should present by appeal.

The writ of habeas corpus .is denied.

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


text:
    In re EARL BIBBINS.
    No. A-10654.
    April 17, 1946.
    (168 P. 2d 311.)

      Earl Bibbins, in pro per.
    Randell S. Cobb, Atty. G-en., and Jess L. Pullen, Asst. Atty. Gen., for respondent.
   BAREFOOT, J.

Petitioner lias filed in this court bis petition for babeas corpus, seeking bis release from tbe State Penitentiary. Tbe Attorney General filed a response on bebalf of tbe Hon. R. B. Conner, warden of tbe Penitentiary, on December 26, 1945, and a supplemental response on January 4, 1946. Tbe case was set for oral argument and submitted on January 23, 1946.

Tbe exhibits attached to tbe petition, tbe response, and tbe record, reveal that tbe petitioner was charged by information filed in tbe district court of Osage county on December 27, 1944, with tbe crime of burglary in tbe second degree, and was also charged as a second offender, with having been previously convicted in Osage county, Okla., on November 14, 1941, of tbe crime of petty larceny, and having served a term of ten days in the county jail; and with having been previously convicted in Osage county, Okla., on June 21, 1937, of tbe crime of burglary in tbe second degree, and having served a term of two years in tbe State Reformatory at Granite, Okla.

Petitioner was represented by able counsel and entered a plea of not guilty. He was tried before a jury, found guilty, and also that be was a second offender, and judgment and sentence was assessed against him by the court at ten years in the- State Penitentiary. Motion for new trial was filed and overruled, and no exception was taken, and no appeal was filed by petitioner.

Under- the above statement, this case comes clearly within the rule so often announced by this court that an appeal can not be considered upon a petition for habeas corpus. It'-fiS- only when the judgment and sentence is Void that relief will be given by habeas corpus.

Petitioner has presented the question in this case that he was sentenced for a term of ten years, and that the statute, 21 O. S. 1941 § 1436, fixes the maximum punishment for conviction of second-degree burglary at seven years in the penitentiary.

In making this contention, defendant overlooks the fact that the “habitual criminal” statute, 21 O.S. 1941 § 51, provides that one having been previously convicted of a felony, upon subsequent conviction of the offense of burglary in the second degree may be sentenced to a term of ten years in the penitentiary. This is the minimum punishment prescribed by the statute. We have recently passed upon this question in the case of Claude Taylor v. State, 82 Okla. Cr. 49, 166 P. 2d 108.

While it is not necessary to pass upon the question for the reasons above stated, petitioner alleges that he was convicted by a jury of ten men. The record reveals that he waived the right to have twelve men sit as jurors in this case, and agreed to be tried by ten jurors. This he had a right to do. Ex parte Hollingsworth, 46 Okla. Cr. 353, 287 P. 840; Trott v. State, 62 Okla. Cr. 52, 70 P. 2d 118.

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

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


author: JONES, J. JONES, P. J.

text:
    ALFRED NOTLEY HOOFER v. STATE.
    No. A-10518.
    Nov. 28, 1945.
    On Rehearing April 17, 1946.
    (164 P. 2d 247; 168 P. 2d 313.)

      David Tant and Ross N. Lillard, both of Oklahoma City, for plaintiff in error.
    Randell S. Cobb, Atty. Gen., and E. J. Broaddus, Asst. Atty. Gen., for defendant in error.
   JONES, J.

The defendant, Alfred Notley Hoofer, was charged in the district court of Oklahoma county with the crime of murder; was tried, convicted of manslaughter in the first degree, and sentenced to serve 10 years in the State Penitentiary, and has appealed.

The Attorney General has filed a motion to strike the case-made for the following reasons:

“That case-made, on page 215, contains Journal Entry of Judgment and Sentence rendered on October 23, 1943, by the District Court of the Seventh Judicial District of the State of Oklahoma, sitting in and for Oklahoma County, adjudging Alfred Notley Hoofer, defendant in said District Court and plaintiff in error herein, guilty on verdict of the jury of manslaughter in the first degree, and sentencing him to serve a term of ten years in the State Penitentiary at McAlester.
“That case-made, on page 219, contains entry of a minute under date of October 23, 1943. of the ‘Minute Journal of said Court’ of said county, stating that motion for new trial was overruled, and that ‘60-3-3 allowed’ to make and serve case made, but there does not appear in the case made any entry in the Journal of the District Court of any order granting to defendant an extension of time in which to make and serve case made.
“That case-made, on page 221, contains Journal Entry of order, rendered on December 21, 1943, rendered on December 21, 1943 granting to defendant extension of time within which to prepare and serve case made ‘until and including January 21, 1944.’
“That case-made, on page 227, contains acknowl-edgement of service of case-made dated April 21, 1943, and signed by the attorneys for the defendant, Alfred Notley Hoofer, and there does not appear in case-made any acceptance of service thereof by the State of Oklahoma, plaintiff in the District Court.
“That on December 21, 1943, the date of the rendition of said order extending time to and including January 21, 1944, the fifteen days allowed by statute for making and serving case-made had expired, and upon said expiration of said time there was no order of the District Court extending such time until said order of December 21, 1943, and the District Court was without jurisdiction to render said order and same is void, and had said order been valid, still it does not appear in the case-made that the case-made was served on the State of Oklahoma on or prior to January 21, 1944, nor that it has ever been served on the State of Oklahoma, and the case-made should be stricken.
“Defendant in error cites the following authorities to support this motion, towit: May v. State, 63 Okla. Cr. 165, 73 P. 2d 875; Cherry v. State, 61 Okla. Cr. 376, 69 P. 2d 407; Caldwell v. State, 57 Okla. Cr. 320, 48 P. 2d 356.”

A copy of said motion was duly served on counsel for defendant and set for argument on June 27, 1945. At that time, no appearance was made on behalf of the defendant and the case was submitted upon the record and motion to dismiss filed by the state. The defendant was given 15 days to file a response and brief. Since that date, no response has been filed to the motion to dismiss and no brief has been filed in support of the appeal.

We have examined the case-made and the record sustains the allegations contained in the motion to strike. The authorities cited in the motion of the state amply sustain the state’s contention and the motion of the Attorney General to strike the case-made is sustained.

Under our procedure, there are two methods for taking an appeal from a conviction: First, by filing a petition in error with case-made attached; second, by filing a petition in error with a duly certified copy of the transcript of the record attached.

Houston & Miskovsky, George H. Giddings, David Tant, and Ross N. Lillard, all of Oklahoma City, for plaintiff in error.

Randell S. Cobb, Atty. Gen., and E. J. Broaddus, Asst. Atty. Gen., for defendant in error.

If the first method is pursued and for any reason the case-made is fatally defective, the appeal will be considered upon the transcript, provided it is properly certified by the court clerk. Mathis v. State, 18 Okla. Cr. 199, 194 P. 278; Cherry v. State, 61 Okla. Cr. 376, 69 P. 2d 407.

The record filed herein is properly certified by the clerk of the court and we have considered the record as a transcript to ascertain whether there were any fundamental errors sufficient to require a reversal of this case. The information clearly charges the accused of the murder of one Bob Johnson. No demurrer or attack on the information was ever made by the defendant. The instructions seem to be applicable to the law and facts of the case and we have found no fundamental error in any of the proceedings. The judgment of the court conforms to the verdict and it is apparent that the judgment of the district court of Oklahoma county should be affirmed.

It is so ordered.

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

[On Rehearing.]

JONES, P. J.

After the opinion was rendered in this case, a petition for rehearing was filed, in which attention of this court was directed to the fact that the attorneys for the defendant, after being served with the motion to dismiss the appeal filed by the Attorney General, procured a stipulation signed by the special counsel appointed by the trial court to represent the state at the trial of said case, in which stipulation it was agreed that the case made was served upon said counsel for the state during the statutory period within which the plaintiff had been granted time to make and serve case-made, and that through an oversight such stipulation had been omitted from the case made. This stipulation was delivered to the Attorney General with the understanding that it was to be approved by him and presented to this court for an order directing its inclusion in the case made filed in this court.

The Assistant Attorney General, who represented the state and who filed the motion to dismiss the appeal on behalf of the state, has appeared before the court and stated that the stipulation was left with him as related by counsel for the defendant, but through inadvertence and oversight on his part it was never presented to the court for filing as a part of the record in this case.

Counsel for defendant should have presented the matter directly to the court, or the very least they could Rave done was to have followed up the matter to see that the Attorney General had presented the matter for the approval of the court. However, this court does not want to deprive the defendant of a right to have his conviction reviewed because of some technical oversight which occurred through the laches of his counsel. For that reason, a rehearing was granted and counsel for defendant ivas given- permission to file a brief in support of the appeal. It is unnecessary to again recite the facts. We have considered the brief filed on behalf of the defendant and have again reviewed the record. It is our con-elusion that the judgment of conviction should be affirmed but that the interests of justice require that the punishment be modified by a reduction of the term' of imprisonment in the State Penitentiary from a term of 10 years to a term of 5 years.

It is therefore ordered that the judgment and sentence of the district court of Oklahoma county be modified by reducing the punishment from ten years in the State Penitentiary to a term of five years in the State Penitentiary, and the judgment and sentence as thus modified is affirmed.

Mandate is ordered issued forthwith.

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


text:
    ARSTELL DOOLEY v. STATE.
    No. A-10522.
    April 24, 1946.
    (168 P. 2d 651.)

      Carl 0. Wever, of Pawhuska, for plaintiff in error.
    Randell S. Cobb, Atty. Gen., Sam H. Lattimore, Asst. Atty. Gen., and J. D. Plunkett, Co. Atty., of Bartles-ville, for defendant in error.
   BAREFOOT, J.

Defendant, Arstell Dooley, was charged in the district court of Washington county with the crime of murder. He was tried, convicted of manslaughter in the first degree as an included offense, and sentenced to serve a term of 15 years in the State Penitentiary. From this judgment and sentence he has appealed.

The first assignment of error is “the court erred in forcing defendant to trial immediately upon appointing him counsel.”

The consideration of this assignment of error necessitates a short statement of the facts.

Defendant was charged with the killing of Willie Meigs on the 1st day of June, 1943. He was arrested, and had a preliminary trial. An information was filed in the district court on June 8, 1943. Defendant employed counsel, Mr. Geo. S. Hill, who represented him at the preliminary trial, and he paid him for his services in the trial of his case. His trial was set for October 25, 1943, and defendant, his counsel and witnesses were in court, but the case was continued at the request of the county attorney, to October 28, 1943. The record is silent as to what occurred on October 28, 1943, but on November 1, 1943, the following proceedings were had:

“The Court: Is the county attorney ready to try this case? Mr. Plunkett: The state is ready. The Court: Is the defendant ready? The Defendant: As soon as I get my lawyer here. The Court. How? The Defendant: As soon as I get my lawyer here. The Court: Who is he? The Defendant: Mr. Hill. The Court: Is Mr. Hill sick? The Defendant: He is supposed to be sick. He has got a doctor. I was out there last night. The Court: You were out there last night? The Defendant: Yes, sir. I went out to talk to him to see if he was going to be here. He said he would be here. The Court: He said last night he would be here? The Defendant: He said he would try to. Said the doctor had been out to see him. The Court: What time were you there? The Defendant: Sir? The Court: What time were you there? The Defendant: It was about 8 o’clock I think when I went out. The Court: He told you then he was going to be here today? The Defendant: Told me he would try to. I told him I wanted to get it over and told him what you said, you see. He said, ‘Go on up. I’ll get ont there if I can.’ So I didn’t call up this morning. The Court: You didn’t? The Defendant: No, sir. The Court: You had better get you a lawyer if you want one. The Defendant: Well, I can call him up. The Court: I don’t know whether you can get Mr. Hill. If he is sick, of course, he can’t come. But we are going to try this case. That is what I told you last Thursday, isn’t it? The Defendant: Yes sir. I told him the same thing. The Court: Sir? The Defendant: I told him the same thing. He said he was going to try to get here. I can get in touch with him right away. If somebody will take me out — if Mr. Tom or Mr. Fry will take me out to get him. Of course, if I can’t get him, I don’t have no other lawyer that knows anything about the case. The Court: What do you say, Mr. County Attorney? Mr. Plunkett: I don’t know, your honor. I expect it would be better to continue it for the term than to try to force him to trial. The Court: What time were you out at Mr. Hill’s house last night? Mr. Plunkett: 7 o’clock. The Court: What did he say then about coming? Mr. Plunkett: He said he couldn’t make it. The Court: The doctor was there at that time? Mr. Plunkett: The doctor was there. The Court: I don’t see the necessity of continuing this case for the term. This jury hasn’t tried but one case. They ought to try two. What about the 15th? Can we put it over until the 15th? Mr. Plunkett: It will be all right with me. The Court: Mr. Hill ought to be well by that time. Can you get you another lawyer the 15th if Mr. Hill isn’t there? The Defendant: If he ain’t able, guess I’ll have to. The Court: I am asking you if you can. The Defendant: I don’t know about the money. It takes money. I can try. I don’t know whether I’ll be able to find one. The Court: You will be ready for trial the 15th if the case is assigned for that time? The Defendant: Yeah, I’ll be here. The Court: And ready for trial? The Defendant: If he ain’t going to be ready the 15th, I’ll have another lawyer. The Court: I will postpone this case on application of the defendant until the 15th, two weeks from today. Be ready at that time. Have your witnesses back at that time. This is an unfortunate situation. The Defendant: I thank you, Judge.”

On November 15, 1943, the following proceedings were had:

“The Court: Call the names of the jurors, Mr. Clerk, please, if you have the list of them. Court Clerk: I’ll get the list. The Court: Is the defendant in the court room— —Arstell Dooley? Mr. Plunkett: No, he isn’t. The Court: Call him, Mr. Sheriff. (Names on jury list called by court clerk)
“Court Clerk: Twenty-five answered. Anybody’s name I didn’t call? Twenty-five answered.
“The Court: Very well, Who are the sureties on defendant’s bond, Mr. County Attorney? (County Attorney to bench) The Court: Mr. Bailiff, call Eleanor A. Weaver. (Eleanor A. Weaver called twice by the bailiff) The Court: Call Mary Duf field. (Mary Duf field called twice by the bailiff) The Court: Lonney Dooley. (Lonnie Dooley called twice by bailiff) The Court: Call Arstell Dooley again. The Bailiff: The girl said he was coming. (Defendant in court room.) The Court: You are Arstell Dooley? The Defendant: Yes, sir. The Court: Are you ready for trial? The Defendant: Well, my lawyer is in bed— The Court: Just a moment. Is the state ready for trial? Mr. Plunkett: State is ready. The Court: Are you ready for trial? The Defendant: Well, I haven’t got— my lawyer isn’t able to be here. The Court: Well, you were to get another if he wasn’t able to be here. The Defendant: I done paid him in full for what he charged for the case, and I couldn’t be able to get another one. The Court: I will appoint one. Mr. Hurt, are you able to take care of this boy? Mr. Hurt: I don’t know a thing in the world about this case. This is a pretty serious case. I can try. The Court: Take him in my room and talk to him. Let me know when you are ready for trial. (Mr. Hurt and defendant retire from court room) Mr. Hurt: There are just two of our witnesses here. The Court: Were they subpoenaed? Mr. Hurt: He said they were being sub-poenaecl. I don’t know. The Court: Have an attachment for them, if you wish to. Mr. Hurt: I don’t know what to do in a case like this. Your Honor, I am frank to tell yon I am not really ready to go to trial myself. The Court: I know, Mr. Hurt, yon couldn’t very well be prepared to try this case but it has got to be tried. The defendant knew this case was coming up and if his lawyer couldn’t be here he should get another lawyer. If he could not procure one he should have let the court know. Mr. Hurt: This is a serious case. The Court: Let me finish, Mr. Hurt. If he couldn’t hire another lawyer he should have let the court know and the court would have appointed a lawyer and let him get ready. It was his business. He knew it. So you will have to go to trial. Mr. Hurt: I will do the best I can. The Court: Call a jury, Mr. Clerk.”

Defendant’s second assignment of error is that the court erred in his instructions to the jury. It is stated that this contention is based on the third assignment of error in the motion for new trial, where it is alleged “that the verdict is contrary to and in disregard to the instructions ol the court.” It is then stated, in the brief, “There were no instructions offered by the defendant and no exceptions saved by defendant to the instructions given.” Counsel for defendant recognizes the general rule that where no exceptions are made to improper instructions during the trial, the defendant waives his right and the question of improper instructions cannot be raised in this court. But defendant seeks to bring this case within the exception to the rule, and in which we have held that where the instructions constitute a fundamental error and deprive the defendant of a substantial right, the error will be considered whether an exception is taken or not.

We have carefully examined the instructions given by the court and do not. find any fundamental error in any of them. We shall not unduly lengthen this opinion by considering all of the instructions.

Instruction No. 16 defines an “overt act.” When this instruction is considered along with the other instructions given by the court, there is nothing therein to deprive the defendant of any right.

Counsel calls attention to the court’s instruction No. 4, and quotes therefrom as follows:

“You are instructed that the defendant’s pleas in this case is that he is not guilty. He goes into the trial of this case presumed to be innocent. He is clothed with this presumption and it remains with him until you find if ever, by the proof beyond a reasonable doubt that he is guilty.”

The words “if ever,” which are italicized in the brief, do not appear in instruction No. 4 as it is shown in the case-made.

Instruction No. 21 was as follows:

“You are further instructed that you should not permit sympathy, or your ideas of what the law should be, or whether the law sought to be enforced in this case is a good or desirable law, to interfere with or bias you in any degree. You should try the case solely upon the law and upon the evidence produced in court in this case.”

We do not consider this instruction improper, and the giving of the same could not have been prejudicial to defendant.

Instruction No. 24 was to the effect that it would require the full panel to render a verdict, and that the same should not be arrived at by “casting lots” or by “chance”; that the jury should be governed as to the law by the instructions, and by the evidence. The other parts of this instruction were such as are given in all criminal cases. There was no request that the court instruct the jury to assess the punishment. Certainly there was no fundamental error in the giving of this instruction.

Under the head of “other assignments of error,” it is contended that reversible error was committed by reason of the failure of the record to show that the court ever ruled upon the demurrer to the information filed by the defendant. The record reveals that after the demurrer was filed on June 9, 1943, defendant was arraigned and entered a plea of not guilty. This constituted a waiver of the demurrer.

It is also contended that the state failed to make proof of venue in Washington county. The evidence was that the killing occurred at 408 North Johnstone, in the city of Bartlesville, and the court will take judicial knowledge of the fact that this was in Washington county.

There is no merit in the contention that there was error in the manner of selecting the jury.

The contention that the remarks of the county attorney in his opening statement to the jury, as follows: “And, by the way, Willie had just been inducted into the army, that is, he had taken his physical examination and was to leave the following Thursday,” were prejudicial to the rights of the defendant is without merit. No exception was taken to the statement, and we do not think it constituted prejudicial error.

The defendant was asked upon cross-examination:

“Q. Arstell have you ever been to the penitentiary before? A. Sure. Q. What was that for? A. Well, I had to shoot a man. Q. You shot a man? A. Yes, sir. Q. How many years did you get for it? A. I got 15. Q. Where was that? A. It was De Moines, Iowa. Q. What about shooting Wilbur Landis here in Bartlesville? A. Ain’t nothing about it. I just had to shoot him because he had a pistol of mine drawn on me. There is another thing— The Court: Don’t tell the details. The question is, whether or not you were convicted of that offense. The Witness: Oh, no, I wasn’t convicted of that offense.”

There can be no objection to the testimony of the defendant that he was convicted in the State of Iowa for killing a man and sentenced to the penitentiary for 15 years. When the defendant offered himself as a witness, the county attorney had the right to ask him on cross-examination if he had been convicted and received a sentence to the penitentiary. He admitted this was true. As to his shooting someone in Bartlesville, this was improper, but no exception was taken thereto, and no motion was made by defendant to strike it. He testified that he was not convicted in that case, and he was cautioned by the court not to tell the details. Under these circumstances, we are of the opinion that no fundamental error was committed.

Other assignments of error will be considered when giving a statement of the evidence in this case.

The facts as revealed by the record are that defendant, Arstell Dooley, killed Willie Meigs at the place of business of Lonnie Dooley, a brother of defendant, in Bartlesville, on June 1, 1943. Six witnesses, some of whom saw the killing, and others who were in close proximity thereto, and Dr. Torrey, who examined the body of the deceased, testified for the state. Deceased arrived at the scene of the difficulty some time before noon. He went out on the porch where several of the witnesses were. He had some dice, and said to one of the witnesses, “I’ll bet you fifty cents I throw eleven the first shot.” In a few moments the defendant came out on the porch, and “called” the bet, and the deceased rolled the dice several times, and won a dollar, and a half pint of whisky from the defendant. They had some few words with reference to the dice game, and some words with reference to who won. Defendant turned and walked into the house, and was followed by the deceased. The other parties walked into an adjoining room, from which they could see and hear defendant and deceased talking through an opening in the wall. Lonnie Dooley, a brother of defendant, called and said, “You-all cut out that argument in there.” They nest heard a pistol fire. They could see defendant through an opening from the back room to the front room. The defendant had a pistol in his hands. The deceased staggered back to the door and fell, and a number of the witnesses stepped over his body in passing out of the building. None of these witnesses saw anything in the hands of deceased, or near his body. The sheriff was called and he found an ice pick lying near the body of deceased. The defendant left the building and went to a residence three or four houses from the scene of the difficulty and was there arrested by the officers. The pistol with which deceased was killed was recovered and introduced in evidence.

All of the witnesses who were in the building at the time of the difficulty were called as witnesses by the state, including the brother of defendant.

Defendant testified and admitted firing the shot that killed deceased. He testified that the deceased told defendant that he would kill him. That deceased got an ice pick and started toward defendant, and he fired the shot. His testimony was a rambling statement of what occurred. The jury had an opportunity to hear his testimony and observe his demeanor upon the witness stand, and evidently did not believe him. Defendant was convicted of manslaughter in the first degree, and given 15 years in the penitentiary.

Several witnesses were called by defendant to testify as to the reputation of the deceased as to being a quarrelsome and dangerous person. Counsel for defendant did not properly qualify these witnesses and the attorney who is now prosecuting this appeal, and who did not appear at the trial, complains that if these witnesses had been properly qualified they would have given valuable testimony for the defendant; and that by reason of this failure, the defendant was not given a fair trial. We have carefully examined this testimony, and while the witnesses were not properly qualified, the trial court was very considerate of the rights of the defendant and permitted these witnesses to testify to'personal encounters they had previously had with deceased, which were not competent. There was nothing in this proceeding which would prejudice the rights of the defendant. The court, in an attempt to be fair to defendant, permitted testimony to be introduced favorable to defendant which was not admissible.

An examination of the record as a whole in this case reveals only one error that could have been to the prejudice of the defendant, and that is, that defendant had employed counsel to defend him at the preliminary examination, and had fully paid him for his services at the trial. The case was set for trial on November 1, 1943, and defendant’s counsel was not present by reason of illness. The case was passed until November 15, 1943, and defendant was cautioned to be ready for trial at that time. On the night of the 14th, defendant saw his lawyer and he told him he would be present in the morning. During the night he was sick and a doctor was called, and advised him he was unable to be present at the trial, and it would be dangerous for him to do so, as he had a heart ailment. Defendant had the right to depend on the word of his lawyer that he would be there. He did not understand much about court procedure. An attempt was made to forfeit his bond while he was standing in the hall, just outside the courtroom. No doubt this was in the presence of the jury who were to be empaneled to try him. The court appointed counsel to defend him and gave him an opportunity to consult with defendant, but no time was given to prepare for trial. The attorney who was appointed protested that he was not familiar with the case, and was not prepared to go to trial. The court said:

“I know, Mr. Hurt, you couldn’t very well be prepared to try this case but it has got to be tried. The defendant knew this case was coming up and if his lawyer couldn’t be here he should get another lawyer. If he could not procure one, he should have let the court know.”

We recognize the rule that the granting or refusal of a motion for continuance is generally within the discretion of the trial court, and unless that discretion has been abused an appellate court ivill not interfere. The court in the instant case, as revealed by the record, was very fair 'in his desire and effort to protect the defendant, and to give him a fair and impartial trial, but it is also revealed by the record that it was his desire that defendant be tried at that term of the court. This is evidenced by his remark, “I don’t see the necessity of continuing this case for the term. This jury hasn’t tried but one case. They ought to try two.”

This court has often had before it the question of a defendant having counsel who should be permitted to have time to prepare before being forced to trial, and especially in capital cases. The question is somewhat different in the instant case, for 'the reason that defendant had counsel to represent him and he had received his fee from defendant for his services, but by reason of illness he was unable, to appear, after the court had granted a 15 day continuance by reason of his illness.

There appears in the record as a part of the case-made an affidavit of defendant’s attorney, Geo. S. Hill, which is as follows:

“Geo. S. Hill of lawful age, being first duly sworn, upon his oath says:
“That he is a regularly licensed and practicing attorney at law with offices in Bartlesville, Washington county, Oklahoma.
“That in the early part of June, 1943, he was employed by Arstell Dooley, to represent him as his attorney in the criminal case of the State of Oklahoma vs. Arstell Dooley, charging the said Dooley with the murder of Willie Meigs, on or about the 1st day of June, 1943, in Washington County, Oklahoma.
“This affiant appeared as counsel for said defendant at the preliminary hearing, and prepared the defense in the District Court for said defendant Dooley, and that said defendant Dooley paid this affiant in full for his services in both the preliminary hearing and to represent him in the District Court, on the charge of murder, in Washington County, Oklahoma.
“This affiant says, that he has been in ill health, since October, 1943, and under the care of a physician on frequent occasions, since said date and at the present time is confined at his home.
“This affiant says that on the evening of November 14th 1943, defendant Dooley came to his home, and he discussed at considerable length with this defendant, the facts in his case, and the defense that would be interposed. The case being assigned for trial on the morning of November 15th 1943. This affiant says, that his health was somewhat improved, and in his judgment he would be in a physical condition, to appear in court on the following morning, and represent defendant Dooley on the charge of the murder of Willie Meigs, the case being assigned for trial on the morning of November 15th, 1943, in the District Court of Washington County, Oklahoma, at 9 o’clock a. m. This affiant says he advised the defendant Dooley on the evening of November 14th, 1943, that he would be in court on the following morning as his counsel in the case of the State of Oklahoma vs Arstell Dooley, charged by information with the murder of Willie Meigs.
“This affiant says that during the night, he became ill and called his physician, who came to his residency and that said physician told this affiant that he was not in a physical condition to appear in court in the defense of an important criminal trial. This affiant further says that said physician told him he should be in bed and not sit up, and that to appear in court would retard his recovery and impair his health, on account of the nervous strain in the trial of a suit of this nature.
“Further affiant sayeth not.
“[s] Geo. S. Hill
Affiant.
“Subscribed and sworn to before me a Notary in and for Washington County, Oklahoma, on this 10 day of February 1944. “Seal [s] W. G. Hurt, Notary Public.
“My commission expires 5/5/47.”
This court in the case of Westbrook v. State, 14 Okla. Cr. 423, 172 P. 464, 469, in passing upon a motion for continuance, had occasion to use the following language, the logic of which we think should be applied to this case:
“However, technical objections should not ordinarily prevent the granting of a motion for a continuance in a capital case, if necessary to a proper presentation of the defendant’s case. It is the right of every person accused of crime to have a fair trial and compulsory process to compel the attendance of his witnesses, and this involves as a matter of course the time reasonably necessary to prepare for trial. The statute prescribes that civil cases in the district court shall not stand for trial until ten days after the issues are made up and no felony case should be set over the objection of the defendant within ten days after his plea is entered. Under the provisions of our Procedure Criminal (section 6003, Eev. Laws [1910, Tit. 22 O. S. 1941 § 1066]) this court, in the furtherance of justice, has the power and authority to modify any judgment appealed from by reducing the sentence. However, that power should not be exercised unless it is apparent that an injustice has been done. Owen v. State, 13 Okla. Cr. 195, 163 P. 548; Fritz v. State, 8 Okla. Cr. 342, 128 P. 170.
“To reverse the judgment of conviction in this case on the facts which are either admitted or so clearly established as to be beyond controversy would be not only to delay justice, but to give no force to the statute which prescribes that such judgments may only be reversed when upon the whole record the court is satisfied the substantial rights of the defendant have been prejudiced. However, if the guilt of the defendant was in any way left in doubt, or if we could believe that the defendant was prejudiced, we should feel it our duty to give him a new trial.
“For the reasons stated, and taking into consideration the fact that the defendant McKennon, who it appears was the arch-conspirator, was upon the recommendation of the prosecuting attorney sentenced to life imprisonment upon his plea of guilty, we are of the opinion that in the furtherance of justice the judgment and sentence in this case should be modified to imprisonment for life at hard labor.”

See, also, Noel v. State, 17 Okla. Cr. 308, 188 P. 688; Goben v. State, 20 Okla. Cr. 220, 201 P. 812; Hall v. State, 78 Okla. Cr. 389, 149 P. 2d 268, 271; Abbott v. State, 79 Okla. Cr. 377, 155 P.2d 267; Rheuark v. State, 81 Okla. Cr. 60, 160 P.2d 413.

In the instant case, the state placed upon the witness stand all of the witnesses who were at or near the scene of the killing, including the brother of defendant. As above stated, the trial court permitted evidence to be introduced by defendant that was inadmissible, but which demonstrated the violent character of deceased. A reading of the record as a whole convinces us that the guilt of defendant of manslaughter in the first degree was fully justified, and that a retrial of this case would probably not change the results. But we are of the opinion that by reason of the statements heretofore made, justice demands that the judgment and sentence of the district court of Washington county should be modified from 15 years in the penitentiary to 10 years in the penitentiary; and as so modified, the judgment is affirmed.

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


author: JONES, P.

text:
    HAROLD DELANO v. STATE.
    No. A-10563.
    April 24, 1946.
    (168 P. 2d 659.)

      Rex H. Holden, of Oklahoma City, for plaintiff in error.
    Randell S. Cobb, Atty. Gen., Fred Hansen, Asst. Atty. Gen., and George Miskovsky, Co. Atty., of Oklahoma City, for defendant in error.
   JONES, P.

This appeal seeks an interpretation of our slot machine and punchboard statutes, 21 O. S.1941 §§ 964-977, as applied to the machine owned by defendant.

Since their enactment by the Legislature in 1939 these statutes have been before this court twice for construction. Ex parte Davis, 66 Okla. Cr. 271, 91 P.2d 799; Couch v. State, 71 Okla. Cr. 223, 110 P.2d 613.

The defendant at the time of his arrest was the owner of a penny arcade in Oklahoma City. There were many and various amusement devices in his place of business including the Hitler Ray Machine involved in this action.

This machine is in two parts; one part consists of a fairly large wooden cabinet with a plate glass window about two feet square in front. Inside of the cabinet is a caricature of Adolph Hitler, which is the object to be shot. Separate and apart from the cabinet containing Hitler’s caricature is a gun which shoots an electric ray. When a person inserted a nickel into the mechanism the ray gun was loaded for 20 shots. When the coin is inserted the mechanism is set into operation whereby Hitler’s image starts moving back and forth across the cabinet. .The shots are fired while the figure is thus moving. The defendant was arrested and charged with operation of a slot machine by reason of his ownership and operation of this Hitler ray gun, and has appealed to this court.

At the trial before the court, a jury having been waived, only two witnesses were called, to wit, the defendant and one of his employees. There is no dispute about the facts. After describing the Hitler ray gun as hereinabove set forth, the defendant testified:

“Q. By having a perfect strike, that is, by being a perfect shot, so to speak, and hitting him 20 times, would the player receive anything by having done so? A. No. Q. Would he receive any additional shots or anything else? A. No. Q. If the player misses all 20 shots, will he receive anything? A. No. Q. Will he be penalized or lose anything? A. No. Q. Is it possible to win or lose anything by the operation of this machine? A. No.”

The defendant further testified that he allowed no gambling in his place of business and that there were signs on many of the machines expressly forbidding gambling. That he had a floor walker employed for the express purpose of seeing that no gambling was done in his place of business.

R. M. Maney, employee of the defendant, testified to substantially the same facts as defendant. He further swore that the only difference between this machine and the average shooting gallery was that the Hitler ray gun shot an electric beam instead of lead bullets. The proof further showed that there was no danger involved in the machine and that the hitting of Hitler with the electric beam involved solely a demonstration of skill and there was no element of chance involved.

It is further agreed by the state that the machine was played for amusement only and that nothing is gained or lost by operation of the machine unless this machine comes within ruling of this court in Couch v. State, supra, wherein we held in accordance with the statute above quoted that the amusement obtained by the operator of a slot machine was a thing of value.

The statute under consideration provides:

“For the purpose of this Act, ‘slot machine’ is defined to be:
“First, Any machine, instrument, mechanism or device that operates or may be operated or played mechanically, electrically, automatically or manually, and which can be played or operated by any person by inserting in any manner into said machine, instrument, mechanism or device, a coin, chip, token, check, credit, money, representative of value, or a thing of value, and by which play or operation such person will stand to win or lose, whether by skill or chance, or by both, a thing of value; and
“Second: Any machine, instrument, mechanism or device that operates or may be played or operated mechanically, electrically, automatically, or manually, and which can be played or operated by any person by paying to or depositing with any person, or by depositing with or in any cache, receptacle, slot, or place a coin, chip, token, check, credit, money, representative of value, or a thing of value, and by which play or operation such person will stand to win or lose, whether by skill or chance, or by both, a thing of value.” 21 O.S.1941, § 964.

It is further provided:

“Every slot machine and every punch board as defined in this Act, is hereby declared to be per se a gambling device, and each is hereby declared to be a public nuisance, and the same may be abated in manner as provided for the abatement of a public nuisance under chapter 58/ Oklahoma Statutes 1931.” 21 O.S.1941 § 972.

And:

“Any person who sets up, operates or conducts, or who permits to be set up, operated or conducted, in or about any place of business, or in or about any place, whether as owner, employee or agent, any slot machine for the purpose of having or allowing same to be played by others for money, property, tangible or intangible, coin, currency, check, chip, token, credit, amusement or any representative of value or a thing of value, shall be deemed guilty of a misdemeanor, and upon conviction shall be punished by a fine of not less than Fifty ($50.00) Dollars nor more than One Hundred Fifty ($150.00) Dollars, or by imprisonment in the county jail for a term of not more than sixty (60) days, or by both such fine and imprisonment.” 21 O.S.1941 § 970.

In Couch v. State, supra, it is stated [71 Okla. Cr. 223, 110 P. 616]:

“The Legislature under the police power has the right to determine what is dangerous and injurious to the public health, the public morals, and the public safety of its inhabitants. McCord v. State, 2 Okla. Cr. 214, 101 P. 280.
“However, police power should not be invoked where the subject to which it is directed has no substantial relation to public health, morals, or welfare, or for a matter for which by law no person ought to be punished. Ex parte Davis, supra.

Under the theory of the state, the machine in question is on the borderline of uncertainty while under the theory of the defendant its operation is absolutely legal.

In passing upon the question here involved, it should be borne in mind that criminal statutes are not to be extended or enlarged by implication. In State v. Waite, 156 Kan. 143, 131 P.2d 708, 709, 148 A.L.R. 874, it is stated:

“A rule of strict construction is to be applied to criminal statutes and courts should not extend them to embrace acts or conduct not clearly included within the prohibitions of the statute.”

In Little v. State, 55 Okla. Cr. 420, 32 P. 2d 94, 95, this court stated:

“Penal statutes cannot be enlarged by implication or extended by inference.
“Person cannot be convicted of crime unless act is within both letter and spirit of penal statute.”

See, also, Myers v. State, 19 Okla. Cr. 129, 197 P. 884, 18 A.L.R. 1057; McDonald v. State, 54 Okla. Cr. 122, 15 P.2d 149.

The lower court found the defendant guilty based solely upon the opinion of this court in Couch v. State, supra, and Ex parte Davis, supra. In Couch v. State, supra, the language used by this court was directed at the particular machine involved in that action just as the opinion in this case is directed to the particular machine herein involved. In the Couch Case we were considering a marble board that had an electrical attachment which was a part of the machine that permitted the giving of free balls or shots when a certain pin was struck, and although the particular mechanism giving the extra shots was not at the time the machine was seized by the officers connected so as to operate, yet the machine was manufactured and constructed so as to permit the winning of extra shots. In addition, we held that the machine came within the prohibition of the statute because of its very nature, and that it was one of the particular machines which the Legislature had in mind as being harmful to public morals at the time of the passage of the act. The Legislature had a right to conclude that such a slot machine attracts youth, gets their money, and educates them in the gambling spirit.

However, in the Couch Case this court held that the Legislature had specifically stated that “amusement” was a “thing of value.” 21 O.S.1941 § 965. In considering whether the machine here involved comes within the prohibition of the statute, it is necessary that we carefully analyze the statute. Under that part of the act defining a slot machine we find that it is: First, any machine, instrument, mechanism or device that operates or may be operated or played mechanically, electrically, automatically or manually; second, which can be played or operated by any person by inserting in any manner into said machine, instrument, mechanism or device a coin, chip, token, check, credit, money, representative of value, or thing of value; third, by which play or operation such person will stand to win or lose; fourth, whether by skill or chance, or both; fifth, a thing of value.

It is conceded by counsel for defendant that the machine involved fulfills all of the above mentioned elements except No. 3, that is to say, the operator did not stand to win or lose a thing of value.

According to the evidence there was never any extra value or extra shots, merchandise, or any other thing given a good score. If a person was unlucky enough to hit Hitler’s image only once, he did not lose anything, and if he was skilful enough to hit Hitler’s image each of the 20 shots, he did not win anything.

It has not been pointed out by the state whereby the machine in question is injurious to public morals so that this court might say that the Legislature had in mind prohibiting the operation of said machine in the passage of the statutes in question. The machine is not dangerous, and for this court to hold that its operation was prohibited by statute would render liable to prosecution an individual operating music box machines, cigarette or candy coin vending machines, automatic parking meters, coin meters on transportation busses, pay toilets, or weighing machines. These are all mechanical devices whereby a person inserts a coin and receives something commensurate in value to the coin deposited. As shown by section 972 of the statute, supra, the Legislature declared the slot machines as defined by section one of the act to be gambling devices. It was at the evil of gambling to which the statute was directed. The machine involved can in no way be said to be a gambling device. It is true that persons may gamble on their skill and the score they might make in shooting at Hitler’s image, but the same argument would apply to shooting in any ordinary shooting gallery where a person deposits the consideration with the owners of the gallery and is permitted so many shots with lead bullets for the consideration paid to the operator.

In recent years there has been a continuous increase of coin operated automatic devices in establishments patronized by the public, particularly in those places of business furnishing meals or amusement. Many of the machines were manufactured so as to come within the law, but the law against gambling was being circumvented by the giving of tokens good for free games for certain scores made on the machine. These tokens were often redeemed by cash or merchandise. To hit at this evil the Legislature defined “amusement” as a “thing of value.” After the passage of the law, any machine giving a free game for high scores would come within the prohibition of the statute.

The state virtually concedes that the machiáe is not a gambling device. Bouvier’s Law Dictionary, Bawle’s ■Third Revision, p. 1331 defines gaming “as a staking on chance where chance is the controlling factor..” As already shown, the hits registered upon Hitler’s image were dependent upon skill.

In Couch v. State this court did not interpret the section of the statute wherein it provides that a player must win or lose something of value. We Avere concerned chiefly with the question as to whether amusement was a thing of value, the defendant contending under the doctrine of ejusdem generis that it Avas not. It appears to us that the phrase “win or lose” inserted in the statute was therein placed so as to require the player to win or lose something by his play. It Avas not necessary that he win or lose, but if the machine is one whereby he might win or lose something of value by his play, then the operation of the machine is prohibited by the statute.

So far as the language in Couch v. State, supra, is contrary to the views herein expressed, the same is modified to conform with this opinion.

Holding as we do that the state has failed to sustain the burden of shoAving that the defendant through the operation of the Hitler ray gun has violated the Slot Machine Act, it follows that the judgment of the court of common pleas of Oklahoma county should be reversed.

It is so ordered.

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


text:
    Ex parte LENA LOUISE DAVIS.
    No. A-10454.
    April 24, 1946.
    (168 P. 2d 663.)
    W. N. Maben and Joe W. Simpson, both of Tulsa, for petitioner.
    Randell S. Cobb, Atty. Gen., and Sam H. Lattimore, Asst. Atty. Gen., for respondent.
   BAREFOOT, J.

Petitioner, Lena Louise Davis, by her mother and next friend, Mrs. Alma Davis, filed in this court her petition for habeas corpus, representing that the said Lena Louise Davis was unlawfully imprisoned and restrained of her liberty at the State Home for Juvenile delinquents at Tecumseh, Oklahoma, by the superintendent of said institution, Mrs. Creighton B. Burnham.

Since the filing of this petition, our attention has been called to the fact, by the response and affidavit of the superintendent, that the petitioner has been discharged from said institution, and is no longer an inmate thereof.

For the above reason, it becomes unnecessary for this court to pass upon the illegality of her restraint, and the petition for habeas corpus is therefore dismissed.

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


text:
    In re W. J. MILLER.
    No. A-10707.
    May 1, 1946.
    (168 P. 2d 897.)
    Hulsey & Hulsey, of McAlester, for petitioner.
    Randell S. Cobb, Atty. Gen., and Sam H. Lattimore, Asst. Atty. Gen., for the Warden, respondent.
   BAREFOOT, J.

Petitioner, W. J. Miller, filed in this court his petition for habeas corpus on January 7, 1946. He alleged that he is serving a sentence in the State Penitentiary at McAlester by reason of a judgment and sentence entered in the district court of McClain county on December 29, 1927, at which time he was charged by information with the crime of robbery by the use of firearms. Attached to the petition is a certified copy of the information, the judgment and sentence, and a copy of the criminal appearance docket of McClain county, in the case of State of Oklahoma v. W. J. Miller, L. M. Miller and L. C. Cruce, No. 1929.

It is alleged in the petition that the judgment and sentence under which petitioner is serving in the Penitentiary is void for the reason that he was sentenced upon a plea of guilty without being informed of his right to counsel, and of being sentenced within two days from the time he was arrested, being sentenced on the same day the information was filed against him. It is also alleged that he “was confined in the county jail without bail and had no opportunity to talk with an attorney or any other person than the county attorney, the sheriff and deputy sheriff.”

A response was filed by the Attorney General on behalf of the warden of the Penitentiary, which contains the following:

“That he denies each and every material allegation in said petition contained, except that respondent holds custody of petitioner by virtue of the judgment and sentence of the district court of McClain County, Oklahoma, duly pronounced by said court on the 29th day of December, 1927, upon a plea of guilty by said petitioner, which judgment and sentence respondent alleges to be regular and legal in all respects.
“Respondent further shows to the court that this petitioner has waited for 18 years to pass before attempting to question the regularity of his sentence; that he has waited until the county attorney and the sheriff who were acquainted with the facts are dead and the recollection of such others that might have had knowledge of the facts has grown dim, and he now asks this court to release him by habeas corpus upon the basis of his willingness to swear to the statements of a petition, some of which at least are plainly untrue and others plainly absurd in view of his alleged claim of ignorance and inexperience and lack of comprehension of the proceedings. On the first page of his petition he swears that he was sentenced ‘just two days after his arrest.’ In the Chaplain’s statement, made after his sentence and incarceration, he stated that he had been held in jail seven days before trial and four days after. The four days were due to the fact that he was sentenced on December 29, 1927, but was not committed to the penitentiary until January 3, 1928.”

No evidence was introduced by petitioner to sustain tbe allegations of his petition. Tbe burden of proof was upon him. Tbe exhibits attached to bis petition are somewhat in conflict with tbe allegations of bis petition. It is revealed by these exhibits, tbe judgment and sentence and tbe criminal appearance docket, that be was advised of bis rights, and that be entered a plea of guilty and waived time to plead. Petitioner alleges that be bad never bad any experience in court procedure, and was unversed in law, uneducated and unable to understand tbe court proceedings and was wholly ignorant of bis statutory and constitutional rights. Tbe allegations of tbe response filed by tbe Attorney General show that petitioner was 27 years of age at tbe time he and bis brother and L. C. Cruce robbed tbe Byers State Bank by tbe use of firearms. That on August 6, 1937, be was granted a parole. That in 1940 be and some companions committed grand larceny in Payne county, and he was tried and given four years in tbe penitentiary. That be has completed bis sentence and is being held by reason of tbe revocation of tbe parole of tbe McClain county sentence.

As above stated, there was no proof offered as to his education and' experience at tbe time be was sentenced in the McClain county case, but tbe above statement indicates that he bad not been much reformed at the time of bis release on parole.

For tbe reasons above stated, tbe petition for habeas corpus is denied.

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


text:
    BOB WILSON v. STATE.
    No. A-10569.
    May 1, 1946.
    (168 P. 2d 898.)
    J. F. Thomas and Lewis Hunter, both of Lawton, for plaintiff in error.
    Randell S. Cobb, Atty. Gen., and Ralph H. Cline, Co. Atty., of Comanche County, of Lawton, for defendant in error.
   JONES, P. J.

This is an appeal from the action of the district court of Comanche county in refusing the application of the defendant to withdraw his plea of guilty to an information charging the defendant with the crime of burglary in the second degree.

The information was filed against the defendant on November 12, 1943, and charged the commission of the crime of burglary on October 8, 1943. Thereafter, on the 4th day of March, 1944, the defendant was duly arraigned in the district court of Comanche county and entered his plea of guilty to the charge set forth in said information. The defendant asked the court to defer the pronouncement of judgment and sentence on his plea of guilty until the month of August to allow him to help finish certain crops. The court being uncertain as to whether he had the power to defer sentence past the term of court at which the plea of guilty was entered, deferred the pronouncement of judgment on the plea of guilty until March 20th. On March 20th, at the suggestion of the county attorney, the pronouncement of the judgment was further deferred until April 19, 1944. On April 19, 1944, the defendant appeared with counsel and filed a motion for leave to withdraw plea of guilty and enter a plea of not guilty.

He recited that he entered his plea of guilty because-of advice given to him by certain friends who told him that if he would enter his plea of guilty it would be easier-on him and he would get a parole.

The trial court set the motion to withdraw the plea of guilty for hearing on April 20, 1944, at which time the defendant was sworn and testified in support of his motion. In his testimony the defendant swore that he had entered his plea of guilty because of the advice of several of his intimate friends that it would be easier on him and that they would help him get a parole. He further testified that he was not guilty of entering the house and stealing the radio as charged in the information. He admitted selling the stolen radio, but said that he had obtained it from a stranger who lived in another community who asked him to sell it for him. On cross-examination he admitted that at the time of his arraignment on March 4th he was fully advised as to his right to counsel and of his other legal and constitutional rights, and was further advised by the court that he would not be eligible for a suspended sentence for the reason that he had prior thereto been twice convicted of the crime of burglary. He further admitted that he told the judge that he was guilty of entering the house and taking the radio as charged in the information and that he said the reason he did it was because he was intoxicated. He further admitted in his testimony that in two or three conferences he had had with the county attorney concerning the crime, he had never mentioned the fact that he had obtained the stolen radio from another party.

The county attorney and the trial court each dictated statements into the record concerning the institution of the charges and the arraignment and plea of the defendant. The county attorney outlined to the court the nature of his proof against the defendant which, if sustained by the evidence, would have been sufficient to convict the defendant if he had been tried for that offense.- The trial court dictated a lengthy statement into the record outlining his conversation with the defendant upon his arraignment, the advice given to the defendant concerning his various rights, and his inquiry of the defendant concerning the ' facts surrounding the alleged crime of burglary Avhich it was charged the defendant had committed.

After reviewing the facts in connection with the arraignment and plea of the defendant and the ensuing delay in pronouncing sentence, the court concluded his statement by saying that he thought the motion by the defendant to withdraw his idea of guilty was solely for the purpose of delay.

The general rule followed by this court is that where a plea of guilty is entered through inadvertence, ignorance, or without deliberation, the trial court should be liberal in permitting it to be withdrawn and a plea of not guilty substituted. Kemp v. State, 35 Okla. Cr. 128, 249 P. 1116; Sloan v. State, 54 Okla. Cr. 324, 20 P.2d 917; Sanders v. State, 72 Okla. Cr. 85, 113 P.2d 198.

It is equally well settled that the granting or denying of permission to withdraw a plea of guilty and to substitute a plea of not guilty is a matter within the sound discretion of the trial court, and its action must be upheld unless an abuse of such discretion clearly appears. Rudolph v. State, 32 Okla. Cr. 265, 240 P. 761; Neville v. State, 72 Okla. Cr. 240, 114 P.2d 961; Tipton v. State, 30 Okla. Cr. 56, 235 P. 259.

In Hart v. State, 29 Okla. Cr. 414, 233 P. 1095, 1096, this court stated :

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

There is no showing made here that would justify this court in concluding that the trial court abused his judicial discretion in refusing to allow the defendant to withdraw his plea of guilty. The defendant admitted that he was fully advised by the court as to all of his various legal and constitutional rights. In his testimony he admits a state of facts which, at the very least, create a strong presumption of guilt on the part of the accused. The minimum punishment only was assessed. The burden being upon the defendant to show that his plea of guilty was entered through inadvertence or through ignorance, influence, or without deliberation, we hold that the defendant has failed to sustain this burden. Under the facts presented by this record we find no abuse of judicial discretion.

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

BAREFOOT, J., concurs. Doyle, J., not participating.