text:
    BOND v. STATE.
    No. A-11022.
    Oct. 19, 1949.
    (210 P. 2d 784.)

      L. B. Clay, Hobart, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Sam H. Lattimore, Asst. Atty. Gen., for defendant in error.
   JONES, P. J.

The defendant, Charles Efton Bond, was charged in the district court of Kiowa county, with the crime of rape, allegedly committed on his daughter, 15 years of age, was convicted of rape in the second degree and sentenced to serve five years imprisonment in the State Penitentiary.

The record is replete with errors. The principal assignments of errors argued in the brief of defendant are:

1. Error of the court in overruling the motion for an instructed verdict on the ground that the state wholly failed to prove that a crime had been committed.

2. Error of the court in admitting evidence to impeach the prosecuting witness.

3. Error of the court in treating the evidence admitted for the purpose of impeachment as substantive evidence, and instructing the jury to consider the same as substantive evidence.

These assignments of error are so related they will be considered together.

Joe Deanne Bond, daughter of defendant, and the person upon whom the rape was allegedly committed, was called as the first witness for the state. She testified positively that the defendant did not at anytime have sexual intercourse with her. The county attorney then stated to the court that she had made a previous statement and asked permission to cross-examine her. Counsel for the defendant objected to the state’s cross-examining their own witness and it was then stipulated that the witness at the time of the preliminary examination testified exactly the same as she had done in the district court, that is, that the defendant had never had sexual intercourse with her, and it was further stipulated that she had not given any statement to the county attorney since the preliminary examination to indicate that she would testify differently at the trial in district court from the evidence she gave at the preliminary hearing.

The court then overruled the objection of the counsel for defendant and allowed the county attorney to cross-examine her concerning a statement which she gave to him in his office at the time charges were filed against the defendant. The witness admitted giving the county attorney a statement, but denied that it was the truth and again emphasized that the defendant had not had sexual intercourse with her.

The county attorney was then allowed to introduce evidence of other people to whom the daughter had allegedly made statements that her father had had sexual relations with her. All of this evidence was admitted for the purpose of impeaching the state’s own witness over the vigorous objections of counsel for defendant. In these statements to the county attorney before the charges were filed, and to the other individuals who testified for the state, the daughter allegedly said that the defendant had had sexual intercourse with her on three or four different occasions with her consent.

At the conclusion of the case, the court gave the following instruction which is assigned as error:

“The State has been permitted to introduce evidence tending to prove other acts of sexual intercourse had between the defendant and Joe Deanne Bond, and you are to consider such other acts, if you find the same to be true, for the purpose of enabling you to arrive at your verdict as to the guilt or innocence of the defendant for the specific act charged in the information at the time named therein, so far as the same may throw light upon the charge as set out in the information.”

The only evidence, other than the evidence of Joe Deanne Bond, and the witnesses who were introduced to impeach her, was the testimony of the arresting officer that the defendant had confessed to him that he had committed the crime.

In Osborn v. State, 86 Okla. Cr. 259, 194 P. 2d 176, 177, this court stated:

“In every criminal prosecution it devolves upon the state to prove, first, the corpus delicti; second, that the crime charged was committed by the accused.
“The 'corpus delicti’ means, when applied to any particular offense, the actual commission by some one of the particular offense charged.
“A conviction cannot be had upon a defendant’s extrajudicial admissions alone, unless the state proves in some way the corpus delicti, independent of the defendant’s admission. Direct and positive proof is not essential to establish the corpus delicti, and it may be proved by circumstantial evidence. When it is proved by circumstantial evidence, the question should be submitted to the jury along with other questions of fact in the case, as to Avhether or not the state has established the corpus delicti beyond a reasonable doubt.”

Here, there Avas no evidence that a crime had been committed. The daughter said there was no act of sexual intercourse. The evidence of the impeaching witnesses Avould not be substantive proof that a crime was committed. Although a doctor’s name appears endorsed on the information, the doctor was never called as a witness and there was no proof that the girl had ever had sexual intercourse with anyone.

In the early case of Sturgis v. State, 2 Okla. Cr. 362, 102 P. 57-58, this court discussed at length the procedure relating to the right of a party to plead surprise and cross-examine their own witness.

The rules of law established in that case as shown by the syllabus reads:

“ (1) When contradictory statements made by a Avitness are admissible in evidence for the purpose of impeaching him, they must be confined to contradictions of tlie testimony of the witness which are injurious to the party seeking to impeach him, and it is the duty of the court to clearly inform the jury that such statements cannot be considered as independent substantive evidence against or in favor of the defendant, and that the juiy can only consider such contradictory statements for the purpose of affecting the credibility of the witness, if they decide that such statements do have this effect, and that it is unlawful for the jury to consider such statements for any other purpose.
“(m) When a party places a witness upon the stand with notice that such witness will testify adversely to such party, he cannot claim surprise at such testimony, and will not be permitted to impeach the witness in any manner.”

In Dunham v. State, 78 Okla. Cr. 54, 143 P. 2d 834, 835, it is stated:

“A witness’ prior contradictory statement when introduced is to be considered only for the purpose of impeachment and to explain the calling of such witness. It cannot be used as substantive testimony tending to prove the truth of the facts stated. The court, by proper instruction, should limit the application of such testimony to this purpose.”

This court has consistently adhered to the above-stated rules of law.

The trial court erred in giving the instruction hereinabove set forth in which he treated the evidence of the impeaching witnesses as substantive evidence and allowed it to be considered as stated in the instruction, “For the purpose of enabling you to arrive at your verdict as to the guilt or innocence of the defendant for the specific charge.”

We direct the trial court’s attention to the fact that lliis would have been an improper instruction even if the daughter had herself testified that the defendant had committed the crime of rape and had testified to the commission of the act on other occasions. For a discussion of this question see the case of Herren v. State, 75 Okla. Cr. 251, 130 P. 2d 325.

Since there was no corpus delicti proved, it follows that the court erred in overruling the demurrer to the evidence and refusing to instruct the jury to return a verdict of not guilty.

The judgment of the district court of Kiowa county is reversed and the defendant is discharged.

BRETT and POWELL, JJ., concur.


source: Caselaw Access Project

author: POWELL, J.

license: Public Domain

text:
    SNYDER v. STATE.
    No. A-11284.
    Oct. 19, 1949.
    (210 P. 2d 787.)

      Elmore A. Page, Tulsa, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Elmer W. Adams, Co. Atty., Tulsa County, Tulsa, for defendant in error.
   POWELL, J.

The defendant, Maurice “Buster” Snyder, was charged by information in the district court of Tulsa county, on October 19, 1948, with petit larceny, second offense, was tried, convicted and sentenced to serve a term of four years in the State Penitentiary at Mc-Alester.

On August 1, 1949, the county attorney of Tulsa county filed a motion in this court to dismiss this appeal, in part stating:

“That thereafter on the 29th day of April, 1949 the defendant herein, Maurice “Buster” Snyder alias Jack Wilson, was charged in case number 58467 in the Court of Common Pleas, Tulsa County, Oklahoma, with the crime of First Degree Rape in that on the 13th day of April, 1949, he had sexual intercourse with one Shirley Smith, a female person thirteen years of age, that a warrant for the arrest of the defendant herein was issued by the Court of Common Pleas, Tulsa County, Oklahoma, that George H. Blaine, Sheriff, and his deputies, have made a thorough and diligent search in Tulsa County, Oklahoma and within the State of Oklahoma for the person of the defendant herein, that they have been unable to find the defendant within the State of Oklahoma. That on May 17, 1949, the County Attorney’s Office, Tulsa County, Oklahoma requested the United States Attorney, Tulsa County, Oklahoma, to file a fugitive complaint against the said defendant and to issue a flight warrant for his apprehension; that said flight warrant was issued, that the combined efforts of the Police Department of the City of Tulsa, the Sheriff’s Office of Tulsa County, Oklahoma and the Federal Bureau of Investigation have been unable to locate and apprehend the defendant herein within the State of Oklahoma.
“That further the defendant herein, Maurice “Buster” Snyder alias Jack Wilson, is now and has been for some time past outside the jurisdiction of this Court and that the defendant Maurice “Buster” Snyder alias Jack Wilson cannot be made to respond to any judgment herein by reason of his leaving the State of Oklahoma is beyond the jurisdiction of this Court.”

Attached to the motion is affidavit made by the chief criminal deputy in the office of the sheriff of Tulsa county detailing efforts of various state law enforcement agencies, as well as the F. B. I., in trying to apprehend the defendant.

The defendant’s attorney has filed a response to the motion to dismiss, admitting practically all the allegations contained in the motion except the conclusion that the defendant, under the facts set out, is a fugitive from justice, stating:

“The plaintiff in error denies that he is not amenable or cannot be made to respond to any order or judgment which may be rendered in this case, and that he will be available to answer and respond to any order or judgment of this Honorable Court.”

On oral argument counsel for defendant stated that he had not had direct contact with the defendant since the charge of rape had been filed and warrant issued, and did not know his client’s whereabouts, but denied that defendant was out of the jurisdiction of this court, contending that “through the grapevine” he understood that defendant bad at all times since the perfection of appeal in the within case been within the State of Oklahoma, and that the state must show flight from the state.

The undenied allegations of the petition, with supporting affidavit, makes out a prima facie case of flight from this jurisdiction. No effort has been made to overcome the allegations in the motion to dismiss by counter affidavits showing the whereabouts of the defendant since the perfection of the within appeal. More is required of the defendant than the mere denial through his attorney that defendant is a fugitive. Facts must be set out to show that defendant has at all times, since the perfecting of his appeal, been within the jurisdiction of this court, and his present whereabouts disclosed. Good faith requires this.

The fact that defendant has avoided seeing his own attorney, and that his method of contact in opposing the motion to dismiss has been entirely indirect and furtive, cannot be overlooked by this court, and more especially cannot be approved. See: Beasley v. State, 51 Okla. Cr. 287, 1 P. 2d 790; Oliver v. State, 55 Okla. Cr. 208, 28 P. 2d 590; Herring v. State, 71 Okla. Cr. 69, 108 P. 2d 193; Burton v. State, 88 Okla. Cr. 147, 200 P. 2d 772; 22 C.J.S., Criminal Law, § 747, p. 1285.

For the reasons stated the motion to dismiss is by this court sustained, the case remanded to the trial court, and it is ordered that the judgment and sentence of the district court herein be carried into execution. Mandate forthwith.

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


author: BRETT, J.

text:
    WARD v. STATE.
    No. A-11032.
    Oct. 19, 1949.
    (210 P. 2d 790.)
    Coffey & Coffey, Tulsa, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Sam H. Lattimore, Asst. Atty. Gen., for defendant in error.
   BRETT, J.

The plaintiff in error Arley Ward, defendant below, was charged in the district court of Tulsa county, Okla., with the crime of murder. The information alleged that on June 22, 1947 near Sand Springs, Okla., in Tulsa county, he shot Earl Newell his brother-in-law with a .38 caliber Smith and Wesson pistol inflicting such bodily wounds that as a result thereof Newell died on June 24, 1947. The case was fully tried, and the court ready to instruct the jury, and after a short requested recess, by and with the aid and advice of able counsel, the defendant withdrew his plea of not guilty, entered a plea of guilty, and was sentenced on September 30, 1947, to 40 years in the penitentiary.

The facts briefly were these: The Newells had had a fish fry at their home with beer and whisky to drink. After they had dined and drank from 3 p. m. to 7:30 p. m., the defendant wanted to go to town and got in the Newell’s car with the intention of driving the same into town. Mrs. Newell, his sister, told him not to drive, that he was too drunk to do so. (In this connection the other witnesses said the defendant was not drunk.) Mrs. Newell’s married daughter, Earline Rotramel, suggested that she could get him to move out from under the wheel and she would drive the car. She told him to move over, and he got out. Her husband, Bill Rotramel, and her little 5-year old son got in the front seat with her. When the defendant got out of the automobile he reached into the back of the car in the back seat and got a small duffel bag containing his effects and started down the road by himself. Before they started the automobile, he turned around coming back in the direction of the automobile. As he got opposite the car he drew the .38 caliber pistol and pointed it in the direction of the occupants of the car and snapped it twice. Then he apparently realized that the pistol was unloaded. When this occurred to him he took shells from his pocket and loaded it. Earline Rotramel got out of the car and tried to restrain him, whereupon he knocked her down. Her father, Earl Newell, the deceased, she said approached him and told him “Let me have the gun, that nobody was mad at him”. The defendant said “You ain’t going to get this gun”. Then Earl Newell turned around and started toward the house, the defendant following him. On the inside defendant stated “You God damn sons of bitches think you have got me. You know I haven’t got any money and no way to get around. I will show you, every God damn one of you”. When the latter statement was made he was looking toward Mrs. Newell. Mr. Newell was standing in the doorway between the kitchen and the bedroom. Suddenly Ward turned around and shot Earl Newell in the left side, the bullet passing through his liver and resulting in his death. The defendant offered no evidence in his own behalf. This was in substance the state’s case, after which it rested. It appears from the foregoing that the defendant in a fit of drunken anger maliciously and premeditatedly killed Earl Newell. The defendant offered no evidence in his own behalf, but likewise rested. There remained nothing to do in the trial except for the court to give his instructions and submit the issues to the jury. At this stage of the proceedings the defendant, after conference with his attorney and the county attorney, informed the court he desired to withdraw his plea of not guilty and enter a plea of guilty to first degree manslaughter and waived the time for sentencing and requested to be sentenced immediately. The record in this regard reveals the following, to wit:

“Mr. Coffey: Yes, your Honor please, we have agreed, the County Attorney and myself and the defendant, subject to Your Honor’s approval, that he make certain recommendations, that we enter a plea of guilty and now withdraw our former plea of not guilty and enter a plea of guilty?
“Mr. Devine: Do you waive the time for sentence, Mr. Coffey? Mr. Coffey: Yes, sir. Mr. Devine: If the Court please, in this case, the defendant has heretofore been convicted of armed robbery and at this time he has a revocation of his parole. He has quite some time to do under that former sentence. In this particular case it is the recommendation of the State that the defendant be sentenced to a period of 40 years in the State Penitentiary.
“It is further the recommendation of the State that this court join with the County Attorney in recommending to the Pardon and Parole Board that the parole revocation as now stands will be computed and he would do his one sentence of 40 years.
“The Court: The plea of guilty, of course, entered to manslaughter in the first degree? Mr. Devine: Yes, sir, we also recommend that the charge be reduced to manslaughter in the first degree.
“Mr. Coffey: Yes, sir.
“The Court: Do you desire date fixed at this time? Mr. Devine: No, we desire that sentence be passed at this time. Mr. Coffey waives further time. Mr. Coffey: Yes, we waive that.
“The Court: Arley Ward, you have heard the statement of you counsel here? Arley Ward: Yes, sir. The Court: That you now desire to withdraw your plea of not guilty in this case and enter a plea of guilty to manslaughter in the first degree? Mr. Ward: Yes, sir. The Court: Is that your desire? Mr. Ward: Yes, sir. The Court: ITow old are you? Mr. Ward: 38.
“The Court: Now, Arley Ward, you have been charged in this court, by information, with the crime of murder and upon recommendation of the County Attorney, that charge has been reduced to manslaughter in the first degree and you have now entered your plea of guilty to that chai’ge and you may now have your sentence pronounced, if that is your desire, or deferred until a later time. Do you now desire to have your sentence pronounced at this time? I understand from your counsel that you do. Mr. Ward: Yes, sir, and may I ask this, in the commitment to the institution, that it shows on the commitment that this recommendation that the County Attorney has just made.
“The Court: Well, the recommendation will be part of the record here, but it would not show in the commitment. Mr. Ward: This could not be a notation at the bottom of that? This recommendation at the bottom? Mr. Devine: The way that will have to be handled is, we request that the court join with the County Attorney’s office and we will prepare' later, with the court’s signature and the County Attorney’s signature, to the parole board, which will go to the warden of the penitentiary, that the recommendation of the revocation be commuted. Mr. Coffey: We will get a certified copy of that. Mr. Ward: But if it does show on the bottom of the commitment that this recommendation has been made by the court, then the parole board, which goes according to that, that the court has seen fit to set that aside. The Court: Well, I don’t understand that to be true. The only thing I am asking you now is whether you want to be sentenced at this time. If you do, we will pass the sentence, the other matter will be taken care of. Mr. Ward: Yes, sir. The Court: Do you desire to have sentence pronounced at this time? Mr. Ward: Yes, sir. The Court: Do you have anything to say at this time why judgment and sentence of the court should not be pronounced against you? Mr. Ward: Sir, I just want to say this, make a statement of this, the County Attorney has recommended 40 years. He told me he would recommend that, due to the fact I don’t deny that the boy was shot or anything like that, but I will say this, the man that is now dead was closer to me than any brother he had, and that is all.
“The Court: Very well, in line with the recommendation made by the County Attorney, and the court’s own judgment of this case, of course this took place out there where you were all drinking, and I am inclined to agree with the recommendation made here. Voluntary drunkenness does not excuse one from crime, but it is in mitigation, sometimes, of the punishment to be inflicted upon a man who commits the crime; so the sentence of the court is pronounced against you, and will be that you be confined in the State Penitentiary at McAlester for a period of 10 years and you will be committed to the sheriff of this county and remanded to his custody for the purpose of carrying out that sentence.
“That will be all.”

In this connection the record further reveals that the defendant, Arley Ward, was not inexperienced in courtroom proceedings. In considering the foregoing it is well to here note that the defendant had a long, prior criminal record, having been sentenced to the Granite Reformatory for burglary for five years, to the Federal Penitentiary at Leavenworth for violation of the Dyer Act for interstate transportation of a stolen automobile for which he received five years, and was placed on probation; that subsequent thereto he was convicted in Murray county, Okla., and sentenced to the penitentiary at McAlester for a term of 25 years for robbery with firearms. The foregoing appears from his record supplied by the Federal Bureau of Investigation. The record herein further discloses that he received another sentence for a year and a day, in Garvin county, for obtaining money under false pretenses. At the time the offense herein was committed he was out on parole from the 25-year sentence for robbery with firearms which parole had been revoked.

The defendant contends he entered his plea with the understanding that he would be sentenced to 40 years in the penitentiary and that the state would recommend to the Pardon and Parole Board that the remainder of the time on the 25 year sentence from Murray county on the armed robbery conviction be permitted to be computed so that the balance of the 25-year sentence and the 40-year sentence herein imposed would both be served by the defendant by doing the time only on the 40-year sentence herein imposed. It was then believed that becanse the parole bad been revoked on the 25-year sentence for robbery with firearms, defendant would have an additional 14 years to do on that sentence. It developed, however, some time later and after the imposition of the sentence herein, that he had with allowances for good behavior only 6 months and 23 days remaining on said sentence to do. The record further discloses that the county attorney, acting for and on behalf of the state, in a letter dated October 1, 1947, sought to discharge said obligation to the defendant by recommending to the Pardon and Parole Board that he be permitted to do the remaining time on the robbery with firearms conviction for 25 years concurrently with the 40-year sentence herein imposed. It further discloses that the next day after the imposition of the sentence the defendant became dissatisfied and wanted to withdraw his plea of guilty, and on October 2, 1947, filed a motion to vacate the judgment and requesting a new trial. The trial court within its sound discretion overruled said motion. The defendant now complains that the action of the trial court in overruling the motion to vacate and set aside the judgment and sentence and to permit defendant to change his plea of guilty and to re-enter his plea of not guilty and grant him a new trial is contrary to the law and amounts to an abuse of discretion.

The sole and only question involved in this appeal goes to the proposition, in overruling said motion, did the court abuse its discretion? In support of his contention defendant cites numerous authorities consisting principally of Ex parte Farrar, 74 Okla. Cr. 390, 126 P. 2d 545; Ex parte Robnett, 69 Okla. Cr. 235, 101 P. 2d 645; Sawyer v. State, 73 Okla. Cr. 186, 119 P. 2d 256; Sloan v. State, 54 Okla. Cr. 324, 20 P. 2d 917; Porter v. State, 58 Okla. Cr. 54, 49 P. 2d 234, 235; Bennett v. State, 75 Okla. Cr. 42, 128 P. 2d 253. We find no fanlt with the rules announced therein save and except that examination of them discloses they do not apply to the situation confronting us. Each of such cases must be decided upon its own merits.

Here the trial court to all practical purposes had completed the trial. The withdrawal of the plea of not guilty and entering of the plea of guilty herein we are convinced was not the result of the county attorney’s recommendation, but was founded upon fear of what the jury might do if the case was permitted to go to them. Upon the facts contained in this record the jury could have given the defendant either life imprisonment or sentenced him to electrocution in the electric chair. The record would have supported such a finding. For this reason it appears that the defendant was not willing to speculate upon the results in the hands of the jury but elected after all of the evidence was heard to speculate on the results in the hands of the judge who, upon the recommendation of the county attorney, sentenced the defendant to 40 years in the State Penitentiary. Such recommendations are not an uncommon occurrence on pleas of guilty in criminal cases. The trial court was not bound, however, by the recommendation of the county attorney. It appears that the sentence herein imposed was the result of his “own judgment in this case”, except, as he said in the hearing on the motion for new trial, had it not have been for the county attorney’s recommendation, he would probably have given him 50 to 60 years. This court does not believe the plea of guilty was induced because of the recommendation of the 40-year sentence and the agreement to get favorable action from the parole board as to the unserved portion of the 25-year sentence, but from fear of the jury. In fact, we are of the opinion that such matters were only a favorable incidence to the plea of guilty. The matter of granting permission to withdraw a plea of guilty and granting a new trial was a matter within the trial court’s sound discretion, which could only be disturbed by this court upon an abuse thereof. Sanders v. State, 72 Okla. Cr. 85, 113 P. 2d 198, wherein it was said:

“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 will be upheld unless an abuse of such discretion clearly appears from the record.”

And at page 90 of 72 Okla. Cr., at page 200 of 113 P. 2d therein:

“The decisions of this court clearly state that in order to uphold the contention of an accused that a trial court has abused his discretion in refusing to allow a plea of guilty to be withdrawn and a plea of not guilty substituted therefor, it must be apparent from the record that the plea has been made unadvisedly, through ignorance, inadvertence, influence, or without deliberation, and that there is a defense that should be presented to a jury.”

Hart v. State, 29 Okla. Cr. 414, 233 P. 1095, 1096, therein cited in support of the foregoing rule. An examination of the record herein discloses that the plea of guilty was entered advisedly, that it was not entered through ignorance or inadvertence and that it was not by reason of the court being influenced by the county attorney, but was because of the fact that the defendant believed he would receive more favorable action by the court than he would at the hands of the jury before whom said case had virtually been tried. The plea of guilty was certainly entered after deliberation during what virtually amounted to a full trial, and upon realization that there was no defense to the charge of murder. Tbe trial court certainly did not abuse its discretion in refusing to vacate and set aside tbe judgment and sentence herein imposed and to permit the defendant to change his plea of guilty and re-enter his plea of not guilty and to grant him a new trial. As aptly stated by the trial court in overruling the motion to vacate the judgment and grant a new trial, “it would be just playing with justice to say that after a man has come in here and entered his plea of guilty, an intelligent man, a man of his age, 38 years old, he has been in the penitentiary before, he knows the consequences of these things, to say that he could come in, have this judgment set aside, be tried over, take another gamble at it; he had his chance to go to the jury and let the jury determine his punishment by their verdict, but he did not elect so to do. He had that right and he did not avail himself of that right and he has nothing, in the judgment of the court, in this application that would justify the court in granting the motion.” In our opinion, the defendant is most fortunate in that he was so ably represented. It is only because of such representation that he got off with 40 years imprisonment instead of being found guilty of murder and being sentenced to life imprisonment or electrocution in the electric chair. For all of the above and foregoing reasons the judgment and sentence is accordingly affirmed.

JONES, P. J., and POWELL, J., concur.


text:
    Ex parte BROWN.
    No. A-11204.
    Oct. 26, 1949.
    (211 P. 2d 293.)

      Tex R. Brown, petitioner, pro se.
    Mac Q. Williamson, Atty. Gen., for respondent.
   POWELL, J.

This is an original proceeding in babeas corpus by tbe petitioner, Tex R. Brown, who is confined in tbe Oklahoma State Penitentiary at McAlester.

In the verified petition it is alleged that on September 21, 1946, tbe petitioner entered a plea of guilty to the charge of larceny of an automobile, second offense, in the district court of Pottawatomie county, Okla., and was sentenced to serve seven years in the State Penitentiary.

Attached to the petition is a copy of the information filed in the district court of Pottawatomie county on August 26, 1946, charging the petitioner with the larceny of an automobile after former conviction of a felony, and in which it is alleged that defendant entered a plea of guilty in the United States District Court for the Northern District of Texas to the charge of transporting a stolen automobile from one state to another, was sentenced to serve two years therefor and entered the Federal Reformatory at El Reno, Okla., on June 2, 1939, to serve such term; and further alleging that petitioner entered a plea of guilty to a charge of grand larceny in the district court of Washington county, Olda., and was sentenced to serve one year in the State Penitentiary at McAlester, and entered the penitentiary to serve said term on April 23, 1945.

The complaint in the district court of Pottawatomie county was filed under Tit. 21 O. S. 1941 § 51, and 21 O. S. Supp. § 1720. Section 1720 provides:

“Any person in this State who shall steal an aircraft, automobile or other automotive driven vehicle shall be guilty of a felony, and upon conviction shall be punished by confinement in the State Penitentiary for a term of not less than three (3) years, nor more than twenty (20) years.”

Section 51 is that section of the Oklahoma statutes referred to as the “habitual criminal statute,” and provides one convicted of second and subsequent offenses may be more severely penalized because of his previous convictions. Subsection 1 thereof provides:

“If the offense of which such person is subsequently convicted is such that upon a first conviction an offender would be punishable by imprisonment in the penitentiary for any term exceeding five years, such person is punishable by imprisonment in the penitentiary for a term of not less than ten years.”

The constitutionality of this statute has been upheld many times. By the enactment thereof, the Legislature did not create or define a new or independent crime, but the statute sets out circumstances wherein one found guilty of a specific crime may be more severely penalized because of bis previous convictions. Spann v. State, 69 Okla. Cr. 369, 103 P. 2d 389, and cases therein cited.

The minimum punishment provided by the above statute is ten years in the State Penitentiary, and it is evident that the trial court, in accepting the plea of guilty of this petitioner, did not take into consideration the fact that he was charged as a second offender, and sentenced him under Tit. 21 O. S. Supp. § 1720, as hereinbefore quoted. Petitioner has no cause to complain, and in fact is fortunate that he received only seven years, instead of the minimum of 10 years.

The information was filed on August 26, 1946. Petitioner entered a plea of guilty and was sentenced, according to his petition, on September 21, 1946. He has filed his petition here without the aid of counsel, and in keeping with the established custom of this court, we have carefully examined the information, and considered the petition and brief attached thereto.

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 of whether or not 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. Ex parte Fisher, 88 Okla. Cr. 1, 199 P. 2d 238, and cases cited.

From an examination of the record before us, it appears conclusively that the district court of Pottawatomie county had jurisdiction of the person of the accused, and of the offense charged, and there is nothing before us to show lack of jurisdiction in the trial court to pronounce the judgment and sentence. This petitioner was not without experience in criminal cases. He entered a plea of guilty in the district court to a charge of larceny of an automobile after former conviction of a felony. No attempt was made to appeal from the judgment and sentence.

The petition for writ of habeas corpus is denied.

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


author: JONES, P. J.

text:
    Ex parte BOSTWICK
    No. A-11240.
    Oct. 26, 1949.
    (211 P. 2d 290.)

      Oliver N. Bostwick, pro se.
    Mac Q. Williamson, Atty. Gen., and Lewis A. Wallace, Asst. Atty. Gen., for defendant in error.
   JONES, P. J.

This is an original action in habeas corpus brought by the petitioner, Oliver N. Bostwick, for the purpose of securing his release from confinement in the State Penitentiary.

The petitioner bases his right to discharge upon his allegation that at the time he entered his pleas of guilty in the district court of Okmulgee county, to five charges of forgery in the second degree there pending against him, he was of unsound mind and did not know the nature of the charges against him, and was mentally incapable of waiving any of his rights, or of entering his pleas of guilty which the record shows to have been done on January 15, 1947..

The petitioner in support of his petition made a showing that he had been discharged from the United States Army on March 9, 1945, for the reason that he was physically unfit for active service by reason of a nervous condition, and that he was classified as 30 per cent disabled from March 10, 1945, until July 5, 1948, at which time the disability rating was reduced to 10 per cent by reason of an improvement in the physical condition of petitioner. The nervous disorder which secured a discharge for the petitioner from the United States Army was manifested by fainting and feelings of unreality.

The proof on the part of respondent disclosed that the petitioner was arrested in Okmulgee after having passed five different forged checks in Okmulgee county.

After his arrest, the sheriff’s office of Okmulgee county received telegraphic communications from officers throughout Oklahoma and Texas, advising that the said Bostwick was wanted by them for similar crimes. He was specifically wanted at Vernon, Tex.; Waxahachie, Tex.; Hobart, Okla.; Seymour, Tex.; and Lexington, Mo.

Richard Hays, county attorney of Okmulgee county, swore that the petitioner, after learning that he was being sought at various places, sent for him to see what sentence he would recommend if the petitioner would enter pleas of guilty to the charges filed against him in Okmulgee; that he told the petitioner he would recommend a maximum sentence of seven years in each case, but would agree that the sentences could run concurrently; that he, the county attorney, talked with petitioner at that time at great length and petitioner told him that for over one and a half years, he had done no work except travel throughout the southwest cashing forged checks, but that his arrest in Okmulgee was the first time he had ever been caught; that petitioner made no statement to him that he had ever been in the United States Army or had ever been discharged from the army as a psychoneurotic patient; that nothing was said to him at all in the conversation at that time, or the next day in his office, or in his presence in the courtroom when the plea of guilty was entered, which would indicate in any manner that the petitioner was a psychoneurotic or that he did not fully understand the nature and consequences of his pleas of guilty to the charges filed against him; that the district court advised the petitioner of each and all of his rights, and offered to appoint counsel to represent him in case of petitioner’s inability to employ counsel, if such was the desire of the accused, but that petitioner stated he wanted to plead guilty and the court thereupon accepted his pleas of guilty and pronounced sentence against him in each case.

Petitioner remained in jail for four days after his arrest before the pleas of guilty were entered.

District Judge W. H. Blackbird was the trial judge who pronounced the sentence on petitioner’s pleas of guilty. He swore that he advised the petitioner at length of all of his various rights under the statutes and Constitution of Oklahoma, including his right to trial by jury, of his right to be represented by counsel, and was further told by the court that if he was not financially able to employ counsel, then the court would appoint an attorney to represent him in said case; that the defendant stated in open court that he wanted to enter his pleas of guilty to the charges then pending against him, and that during the period of time he was before the court in which the court interrogated him concerning the commission of said crimes, the court observed nothing in his appearance, conduct and demeanor, which in any way would indicate to the court that the accused was of unsound mind, or did not fully appreciate and understand the nature of the charges filed against him, or the consequences of his pleas of guilty to said charges of forgery.

It has been held that where one accused of crime is incapable of understanding the nature of the charges against him because of his youthfulness, or unsoundness of mind, it is the court’s duty whether requested or not, to appoint counsel to represent the accused as a necessary requisite of due process of law. Ex parte Meadows, 70 Okla. Cr. 304, 106 P. 2d 139.

Trial courts in every case should be slow to accept pleas of guilty, unless by questioning of the accused, they feel certain that accused fully comprehends the nature of the charges against him and appreciates and understands the consequences of the entering of a plea of guilty.

Here the petitioner, Bostwick, was a stranger in Okmulgee. He was unknown to any of the public officials of that county. He was a clever forger and had succeeded in passing four checks without detection before he was arrested at the time he attempted to pass the fifth check. He had done the same thing in many other places, and had escaped without being arrested. There was nothing in his personal appearance, nor in his conversation with the officers, which led them to believe that he was of unsound mind, or did not fully know what he was doing.

Under the circumstances disclosed by this record, the district court of Okmulgee county was justified in accepting the pleas of guilty and pronouncing sentence.

The writ of habeas corpus is denied.

BRETT and POWELL, JJ., concur.


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    LEWIS v. STATE.
    No. A-11055.
    Oct. 26, 1949.
    (211 P. 2d 295.)

      George Campbell, Sand Springs, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Sam H. Lattimore, Asst. Atty. Gen., for defendant in error.
   BRETT, J.

The plaintiff in error, George Bennie Lewis, defendant below, was charged with the crime of driving an automobile in Tulsa county, Okla., on December 24, 1947, while under the influence of intoxicating liquor. To that charge he entered his plea of guilty in the court of common pleas on December 31, 1947, whereupon on said date the court sentenced him' to 10 days in jail and to pay a fine of $25 and costs in the sum of $15.

Thereafter, on January 6, 1948, a motion was filed by counsel to set aside the judgment and sentence and leave to withdraw the plea of guilty. Thereafter, on January 10, 1948, the defendant having served the 10-day sentence in jail, the court ordered him released and gave him 30 days within which to pay his fine. On January 28, 1948, the defendant’s motion to set aside the judgment was overruled and notice of intention to appeal was given and 30 days extension of time in which to make and serve a case-made was entered. The judgment having been entered on December 31, 1947, the time for making and serving a case-made and perfecting the appeal began to run from that date, Title 12 O. S. 1941 § 958:

“The case so made, or a copy thereof, shall, within fifteen days after the judgment or order is rendered, be served upon the opposite party or his attorney, * * * it shall be sufficient service of the case-made in such case, when it, together with a copy thereof, is filed in the office of the clerk of the trial court within the time allowed by law, or order of court extending the time; * * *.”

In light of the foregoing statute it is apparent that the time allowed for making and serving a case-made expired on January 15, 1948, and that the extension of time made and entered on January 28, 1948, not having been obtained within the 15 days as fixed by law is a nullity and of no effect. On February 28, 1948, another order extending time for making and serving a case-made was entered. This, too, was a nullity for the same reason. Thereafter and on March 24, 1948, another order was entered by which it was sought to extend the time for mailing and serving a case-made. For the same reason hereinbefore given it, too, was a nullity. In Cherry v. State, 61 Okla. Cr. 376, 69 P. 2d 407, it was said:

“The defendant was sentenced by the court April 16, 1936, the 15 days allowed the defendant to make and serve a case-made expired May 2, 1936. In the absence of an order granted by the court prior to May 2, 1936, extending the time of the defendant to make and serve a case-made, the court was without jurisdiction to make and serve a case-made, and any order made after May 2, 1936, is a nullity.”

See, also, Brown v. State, 89 Okla. Cr. 389, 208 P. 2d 1143, announcing the same rule.

In the order of March 24, 1948, it further appears that the court therein sought to give 30 days additional time within which to perfect the appeal to this court. In that connection the record discloses that that was the only attempt so to do after the judgment and sentence was entered on December 31, 1947. The attempt to extend the time for perfecting the appeal in this manner was likewise a nullity under the provisions of the statute, Title 22 O. S. 1941, § 1054, as follows:

“In misdemeanor cases the appeal must be taken within sixty days after the judgment is rendered: Provided, However, that the trial court or judge may, for good cause shown, extend the time in which such appeal may be taken not exceeding sixty days.”

Likewise, it clearly appears that the time for perfecting the appeal in the case at bar began to run from December 31, 1947, as did the time for making and serving a case-made. It is therefore apparent that the time allowed by law for perfecting the appeal expired on March 1, 1948. During the 60-day period fixed by statute, the defendant might have obtained an order extending the time an additional 60 days had he so desired to do, but this record discloses no attempt was made to extend the time until March 24, 1948. The order attempting to extend the time for perfecting the appeal not having been made within the period of 60 days fixed by law for perfecting the same, came 23 days late and is therefore a nullity. Cruse v. State, 86 Okla. Cr. 83, 187 P. 2d 235, 236, wherein this court said:

“As this court has said upon numerous occasions, we are reluctant to dismiss appeals in criminal cases, and will not do so upon technicalities, but when the appeal has not been filed within the time prescribed by law, this court does not have jurisdiction to consider the appeal. * * *
“There is no provision of law which vests this court with discretion to hear and determine appeals on the merits when they are not taken within the time prescribed by statute.” Miller v. State, 78 Okla. Cr. 112, 144 P. 2d 120; Wilkerson v. State, 76 Okla. Cr. 152, 134 P. 2d 998, and many other cases.

For the above and foregoing, reasons the attempted appeal is therefore dismissed, and the cause is remanded to the trial court, with directions to enforce its judgment and sentence.

JONES, P. J., and POWELL, J., concur.


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    SMITH v. STATE.
    No. A-11062.
    Nov. 2, 1949.
    (211 P. 2d 538.)
    Amos T. Hall, Tulsa, and A. Carter, Okmulgee, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and L. A. Wallace, Asst. Atty. Gen., for defendant in error.
   BRETT, J.

The plaintiff in error, defendant below, George Smith, was charged, tried, convicted and sentenced to 7 years in the penitentiary in the district court of Okmulgee county, Okla., for the crime of maiming H. O. Crane.

The prosecution was brought under the provisions of Title 21, § 751, O.S.A. 1941, and the punishment assessed under the provisions, of Title 21, § 759, O.S.A. 1941, all as by law provided. This is the same charge with apparently the same result as was intended in the first trial, the results of which are reported in Smith v. State, 83 Okla. Cr. 392, 177 P. 2d 523.

Briefly, the facts are that on the 21st day of June, 1943, the victim, H. O. Crane, was on his, way from Lincoln, Ark., to Okmulgee, Okla., via Greyhound bus, where he was to work in the construction of Glennon Hospital, a war-time government project. He boarded the bus and took the fourth seat from the back. The defendant, a negro, already on the bus, was seated back of him but in the portion in the bus reserved for white persons. The bus driver ordered the defendant to move to the back of the bus set apart for negroes, but he refused to do so. The defendant had just been discharged from the United States Army and was clothed in the uniform of a soldier. The bus driver called two members of the military police at the bus station who ordered the defendant to move, which he refused to do on the ground that he had been discharged and the matter was out of the military police jurisdiction. The. military police left and an officer of the army came on board the bus and informed the defendant that as, long as he was still in the uniform of a soldier he would have to submit to army orders. The defendant then moved back into the section of the bus reserved for negroes. Before the bus arrived in Okmulgee, Mr. Crane moved to the first seat in the front of the bus on the right-hand side nearest the door. When the bus arrived in Okmulgee at a stop on the east side of Okmulgee, which section of the city is largely inhabited by negroes, Mr. Crane was asleep. It was then the assault was made. The defendant, before leaving the bus, hit Mr. Crane with a whisky bottle across the face, with such force as to inflict permanent injury and disfigurement to the extent that he was rendered totally blind in the right eye and suffered the loss of all but 20% of vision in the left eye.

The state’s evidence tended to disclose that the assault was entirely unprovoked. The defendant’s evidence was that when the disturbance first arose, Crane insulted the defendant and threatened to help the bus driver evict him from the bus. It further discloses that he said he was afraid and that as he went by the victim to leave the bus at Okmulgee, Crane made a movement as though to pull a weapon from his pocket, which so frightened him that he struck Crane in self-defense. As to the theory of the defendant’s case, that the victim did make certain movements designed to put him in fear before the assault was made, his testimony stands unsupported.

On this record, the defendant advances only the contention that the punishment is too severe, and was the result of racial feeling. We have read the record carefully and find no support therein for this contention. To the contrary, the record discloses that the defendant was accorded a fair and impartial trial with a studied attempt to avoid any play being made designed to arouse racial feeling. Therefore, this contention is without merit.

Further, the defendant asks for modification by reduction of his sentence by reason of the contention that Mr. Crane precipitated the trouble by interfering in the situation between the bus driver and the defendant in tendering his services to evict the defendant from the bus. The great weight of the evidence does not support the defendant’s position in this regard. The undisputed record clearly shows that, even if it were true, that Crane had insulted the defendant and tendered his services to the bus driver in helping to evict the defendant from the bus, Crane had abandoned any such idea and was sound asleep when the assault was made. Under these conditions, we can reach but one conclusion, that the assault was premeditatedly and maliciously made.

The Criminal Court of Appeals has the power to modify a judgment by reduction of the sentence, but this power will be exercised only where it is apparent that an injustice has been done, Dooley v. State, 82 Okla. Cr. 243, 168 P. 2d 651; it cannot be arbitrarily exercised, Shimley v. State, 87 Okla. Cr. 179, 196 P. 2d 526. Therefore, because of the nature of the assault and the severity of the injury inflicted, we would not be justified in reducing the sentence, which with allowance for good behavior and other legal credits, could be served in 3 years, 8 months and 17 days,, while the victim will be compelled to endure practically total blindness the rest of his life with no hope of freedom from its dark chamber. For all of the above and foregoing reasons, the judgment and sentence is accordingly affirmed.

JONES, P. J., and POWELL, J., concur.


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    Ex parte HICKS.
    No. A-11228.
    Nov. 2, 1949.
    (211 P. 2d 539.)

      Charles W. Hicks, pro se.
    Mae Q. Williamson, Atty. Gen., and Lewis A. Wallace, Asst. Atty. Gen., attorneys for defendant in error.
   JONES, P. J.

This is an original action in habeas corpus wherein the petitioner seeks to secure his release from confinement in the State Penitentiary. The record shows that the petitioner, on February 14, 1949, entered a plea of guilty in the superior court of Okmulgee county, to the charge of burglary in the second degree, and was sentenced to serve two years in the State Penitentiary.

The petitioner alleges that the judgment and sentence pronounced against him was void for the reason that at the time he was arraigned before the superior court, he was without counsel; that he was a person of unsound mind, and had spent the time between the years 1938 and 1946, as a mental patient at the Central State Hospital for Insane at Norman, Okla., which fact was well known to the county officials of Okmulgee county; that notwithstanding the fact, it was known to the officials that petitioner had been an inmate of the Veterans Hospital at Little Rock, Ark., in addition to the time that he served as a mental patient at the hospital at Norman for temporary mental sickness; that no sanity hearing was held for him in the superior court; no doctor was appointed to examine the petitioner, and no counsel was appointed to represent him; but the petitioner was permitted to enter a plea of guilty in flagrant violation of the statutes and Constitution of Oklahoma.

The proof of the petitioner supports his petition, and further shows that the sheriff of Okmulgee county stated in open court that at the time petitioner was arrested, “he appeared groggy as though under the influence of dope, and was not reacting in a normal manner to questioning.”

The superior judge testified that the petitioner was brought before him on February 14, 1949, at which time there also appeared the assistant county attorney; that the information was read to the accused, and he, the judge, fully advised the accused of all of his constitutional rights, after which the accused entered his plea of guilty, and was thereupon sentenced to serve the minimum term of two years imprisonment in the penitentiary; that the trial court was not advised by the defendant, or by the assistant county attorney, or by any other person of the fact that defendant had been an inmate of any asylum, nor did his actions before the court indicate in any manner that he was mentally deficient, or did not fully understand the nature of the proceedings against him.

With the exception of this affidavit of the trial judge, there is no proof on behalf of the respondent from the sheriff, county attorney, or assistant county attorney, to refute the sworn statement of the accused, that each of said officials fully knew of his having been an inmate in institutions for the insane.

We are quite sure from what the trial court stated, there was nothing said or done in his presence to call his attention to the fact that the petitioner was not a normal person.

However, the other officials who knew of the mental condition of the accused should have advised the court of said mental condition so that the court could have had a mental examination made, and could have appointed counsel for the accused before accepting his plea of guilty.

This case differs from the case of Ex parte Bostwick, 90 Okla. Cr. 133, 211 P. 2d 290, which arose in the same county. In the Bostwick case, Bostwick did not have the long history of insanity behind him which the petitioner has. Bostwick was a stranger and neither said nor did anything to put the officials on notice that he was mentally deficient, if, in fact, he was.

This case falls squarely within the rule adopted in Ex parte Barnett, 67 Okla. Cr. 300, 94 P. 2d 18, 19, wherein in was held:

“In a felony case, where the defendant is unable to employ counsel and is incapable adequately of making his own defense because of ignorance, feeble-mindedness, illiteracy, or the like, it is the duty of the court, whether requested or not, to assign counsel for him as a necessary requisite of due process of law. * * *
“Whether one accused of crime has waived his right to assistance of counsel for his defense must depend in each case upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused. * * *
“A judgment of conviction of one who did not effectively waive his constitutional right to the assistance of counsel for his defense is void as having been rendered without jurisdiction. * * *
“Courts indulge every reasonable presumption against a waiver of fundamental constitutional rights, and do not presume acquiescence in their loss. * * *
“Habeas corpus is an available remedy to one who has, without having effectively waived his constitutional right to the assistance of counsel, been convicted and sentenced and to whom expiration of time has rendered relief by an application for a new trial or by appeal unavailable.”

In the recent case of Ex parte Sisson, 90 Okla. Cr. 47, 210 P. 2d 185, 189, this court stated:

“Persons with mental ailments are in the same class as immature children without any knowledge of court proceedings. It has been held that where such individuals are charged with a crime, it is the court’s duty, whether requested or not, to appoint counsel to represent the accused as a necessary requisite of due process of law.”

It does not follow, in view of what has been said, that the petitioner is entitled to his unqualified discharge from the penitentiary. It is our conclusion that the sentence pronounced against the accused was void because of the failure of the court to appoint counsel to represent the accused before requiring him to plead to the information filed against him. However, the vacating of this judgment merely requires that the defendant be taken back to Okmulgee county where he will await trial on the charge of burglary there filed against him.

It is therefore ordered that the judgment and sentence pronounced against the defendant in Case No. 1608 in the superior court of Okmulgee county, and all other proceedings in said court in said cause subsequent to the filing of the information against the accused, be and the same are hereby vacated and set aside.

It is further ordered that the writ of habeas corpus be issued and the warden of the State Penitentiary at McAlester be and is hereby commanded forthwith to deliver into the custody of the sheriff of Okmulgee county, Okla., the petitioner, Charles W. Hicks.

It is further ordered that the sheriff of Okmulgee county, Okla., hold the said Charles W. Hicks, pending the disposition of the charge filed against him in Cause No. 1603 in the superior court of Okmulgee county, or until be is otherwise discharged as provided by law in such cases.

BBETT and POWELL, JJ., concur.


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    Ex parte WILLIAMS.
    No. A-11226.
    Nov. 2, 1949.
    (211 P. 2d 542.)
    Nathaniel Hathorne Williams, pro se.
    Mac Q. Williamson, Atty. Gen., for respondent.
   POWELL, J.

Petitioner, Nathaniel Hathorne Williams, an inmate of the State Penitentiary at McAlester, has filed in his own proper person a petition in habeas corpus, seeking his release from the penitentiary.

Attached to the petition is a copy of an information filed against petitioner in the district court of Oklahoma county, charging him with robbery by force or fear after former conviction of a felony; a copy of a receipt indicating the purchase of an automobile by one Willie Williams, who was a codefendant, and a typewritten copy of a verdict of the jury finding petitioner guilty of the crime of robbery by force or fear, and assessing Ms punishment at imprisonment in the State Penitentiary for a period of five years, and recommending a suspension of the sentence.

At the time this case was set for submission in this court, there was no appearance by counsel, and no proof offered to sustain the allegations of the petition.

We have carefully examined the petition, and there is nothing to show that the court trying the defendant did not have jurisdiction of both the person and the crime charged, or that the court did not have the power to render the judgment and sentence. All of the questions raised in the petition are questions that should and could only have been raised by an appeal.

We have so often held that habeas corpus cannot be substituted for an appeal, and that it is only when the judgment and sentence is void that relief may be had by habeas corpus, that it is unnecessary to cite authorities to sustain this proposition.

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

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


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    YOES v. STATE.
    No. A-11058.
    Nov. 9, 1949.
    (211 P. 2d 1022.)

      Wade Arends, Oklahoma City, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Sam H. Lattimore, Asst. Atty. Gen., for defendant in error.
   POWELL, J.

George Elvis Yoes was charged in the court of common pleas of Oklahoma county with the offense of illegal possession of intoxicating liquor, convicted and sentenced to pay a fine of $50 and serve 30 days in the county jail, and has appealed.

The information charges the defendant with the possession of 14 pints of whisky on Ocotober 21, 1947.

Defendant filed a motion to suppress the evidence, which was by the court overruled. On his trial before a jury, he was convicted. Motion for new trial was filed and overruled on December 20, 1947. Thereupon the court sentenced the defendant to pay a fine of $50, and to serve a term of 30 days in the county jail of Oklahoma county, in accordance with the verdict of the jury.

On April 23, 1948, an appeal from the judgment was taken by filing in this court a petition in error with case-made and proper proof of notices. No briefs have been filed, and no appearance for oral argument made.

Where the defendant appeals from a judgment of conviction and no brief in support of the petition in error is submitted, and no appearance for oral argument made, we do not consider it the duty of this court to go into a careful examination of the evidence to determine whether or not the trial court erred in the admission or rejection of testimony. This court will examine the record for jurisdictional errors. If no fundamental error appears, the judgment will be affirmed. Epps v. State, 69 Okla. Cr. 460, 104 P. 2d 262; Hice v. State, 81 Okla. Cr. 240, 162 P. 2d 880; Skaggs v. State, 84 Okla. Cr. 443, 184 P. 2d 121, and cases cited.

We have examined the record and find that the information is sufficient to charge the offense of possession of intoxicating liquors. No exceptions were taken to any of the instructions given. The evidence is amply sufficient to sustain the judgment and sentence. On the record before us, we have discovered no error which would warrant a reversal of the judgment, and it appears that the defendant was accorded a fair and impartial trial.

The judgment of the court of common pleas of Oklahoma county is affirmed.

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


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    Ex parte McCOLLUM.
    No. A-11252.
    Nov. 9, 1949.
    (212 P. 2d 161.)

      Golden McCollum, pro se.
    Mac Q. Williamson, Atty. Gen., and Sam H. Lattimore, Asst. Atty. Gen., for respondent.
   BRETT, J.

This is an original petition seeking relief both by mandamus and habeas corpus brought by Golden McCollum, pro se, alleging that he is being unlawfully restrained by C. P. Burford, warden of the State Penitentiary. He alleges that the causes of said restraint are four several and consecutive sentences. First, a 20-year sentence from McIntosh county, Qkla., for robbery with firearms which sentence was imposed on December 5, 1929. Second, a 20-year sentence for robbery with firearms from Lincoln county imposed on March 4,1930. Third, a death sentence commuted to life imprisonment for murder of an inmate committed in the penitentiary, which sentence was imposed on October 10, 1934, and commuted by the Governor on November 30, 1935, to life imprisonment. And, fourth, a second life imprisonment sentence for murder of an inmate committed in the penitentiary, which murder arose out of the transaction resulting in the imposition of the life sentence, hereinbefore referred to. This sentence was imposed upon a plea of guilty on January 18, 1937.

The record discloses that with allowance for lawful credits the petitioner completed service of the first 20-year sentence from McIntosh county on June 15, 1939, and that on said date he was re-committed on the second 20-year sentence from Lincoln county, Okla., service of which he completed on December 25, 1948, and that he was re-committed on the first life imprisonment originally, the death sentence commuted to life imprisonment, service of which he began on the latter date and on which he now stands committed. In other words, the record discloses that the warden of the penitentiary has required petitioner to serve the sentences in the order of their imposition. It further appears that while he is now serving the first life sentence, the warden also holds him for service of his second life sentence imposed on January 18, 1937, service of which he has not commenced and will not commence until he is discharged by law from the life sentence he is now serving.

The petitioner’s contention is that all lesser judgments and sentences imposed on him prior to the imposition of the death sentence commuted to life imprisonment, became immaterial and void as well as the second life sentence, all of which merged in the first life sentence. We presume his theory being that all of the time that could be imposed upon a convict and all that he would ever be able to serve would be a life sentence, hence the merger, and that the warden should have set the lesser sentences aside, and billed him in on the first life sentence, and should not have placed a hold on him for the second life sentence. He further contends that by reason of being required to finish each of the sentences in the order of their imposition he is being unlawfully detained, and deprived of eligibility for making application for parole on the first life sentence, if service thereof had commenced on November 30, 1935, instead of being required to commence after completion of the two lesser sentences of 20 years. By reason of this contention he says the warden should be ordered and directed to correct his records to reflect the merger of the said lesser sentences of 20 years each and the second life sentence into the first life sentence. He alleges that consideration for parole on a life sentence may be had under the rules of the Pardon and Parole Board after service of 14 years thereon, that by reason of the status of the records at the penitentiary, he is deprived of the privilege of making application therefor solely and only by reason of the condition of the penitentiary records as hereinbefore set forth.

The petitioner’s contentions are wholly without merit in view of the provisions of Title 21 O.S.A. 1941 § 61, as follows:

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

There are numerous cases construing the foregoing-statute contrary to the petitioner’s contention. The most recent case of Ex parte Edwards, 88 Okla. Cr. 433, 204 P. 2d 547, rendered on March 9, 1949, by the late Judge Barefoot, in syllabi 1 and 3 states the law as follows:

“Where there are two or more convictions and judgments thereon, accused should be incarcerated upon the first conviction under which he is apprehended and delivered for imprisonment for the time therein named, and, at the end of that period of confinement, imprisonment should commence upon the second conviction, and terminate in like manner, and so on for subsequent convictions. 21 O. S. 1941 § 61.
“Expiration of time without imprisonment is not execution of sentence to imprisonment.”

See, also, Ex parte Halbert, 45 Okla. Cr. 167, 282 P. 478. In Ex parte Smith, 33 Okla. Cr 175, 242 P. 284, 285, this court said:

“Now where there are a series of convictions and judgments thereon, bearing in mind that our statute contemplates that each judgment shall be satisfied separately, and applying such provisions to this case, it would seem logical for the sheriff to confine the accused upon the first conviction for the period of imprisonment therein named, followed by confinement for the fine and costs therein named, in the event the same are not paid; that at the end of that period of confinement, the imprisonment named in the judgment upon the second conviction, and imprisonment for the fine and costs therein, would begin and terminate in like manner; and so with the third. This conclusion is deduced from and based upon the decisions cited and the provisions of sections 6332, 2782, 2774, and 2303, Comp. Stat. 1921, [28 O. S. 1941 § 101; 22 O. S. 1941 §§ 980, 976; 21 O. S. 1941 § 61].
“Decisions to the contrary in other states, and in this state prior to the passage of the 1913 statute herein referred to, will not control in the face of the policy outlined in the statutes and decisions cited.
“We hold, therefore, that under the conditions here shown the periods of imprisonment do not run concurrently, and that the first judgment must be satisfied in full before the second can be held to begin, and the second, before the third.”

Furthermore, it has been uniformly held by this court that where the penalty is imprisonment the sentence may be satisfied only by the suffering of the actual imprisonment imposed. Ex parte Edwards, supra; Ex parte Eldridge, 3 Okla. Cr. 499, 106 P. 980, 27 L.R.A., N.S., 625, 139 Am. St. Rep. 967, and numerous other authorities. In face of these principles we can only conclude that the petitioner is now engaged in serving a lawful sentence, the jurisdiction to the imposition of which is not questioned. We have held that where the petition and the facts involved disclose the custody and place of confinement of the petitioner are according to law, the writ of habeas corpus will be denied. Ex parte Hampton, 87 Okla. Cr. 410, 198 P. 2d 751; Ex parte Combs, 87 Okla. Cr. 164, 195 P. 2d 772, 773.

But, conceding the records were erroneous, mandamus would not lie from this court to correct the same. The Criminal Court of Appeals is a court of special jurisdiction and limited in the exercise of its powers exclusively to criminal cases, and it is undoubtedly true that, except in cases where under the law this court has original jurisdiction, all exercise of power in other cases must be by virtue of its appellate jurisdiction, and the writ of mandamus can be issued only in exercise or in the aid of its appellate authority. Title 20, O.S.A. 1941 §§ 40, 41. A mandamus to an officer as this would be to the warden, is the exercise of original jurisdiction and not in aid of appellate jurisdiction. Moore v. Taylor, 24 Okla. Cr. 80, 215 P. 965; State ex rel. McDaniel v. Turner, 84 Okla. Cr. 247, 181 P. 2d 296. For this reason even if the records at the penitentiary were erroneous, that question not being in aid of the court’s appellate jurisdiction, we are powerless to grant the relief prayed for by mandamus.

The petitioner complains further that he was held without trial in the second life imprisonment case for 14 months and 18 days, and was thus denied his constitutional right to a speedy trial, Art. 2, § 20, and he is entitled to relief therefor by habeas corpus. This question cannot be properly raised in this proceeding for the petitioner is not now being held under the second life sentence, but is now in custody under the first life sentence. Nevertheless the contention is without merit. The right to a speedy trial is one that may be waived, and is waived by proceeding to trial without objection. Ex parte Wilkerson, 73 Okla. Cr. 32, 117 P. 2d 172. The defendant’s plea of guilty without raising the question of the denial of a speedy trial constituted a valid and binding waiver of the right thereto. The judgment and sentence therein imposed is therefore not void for the reason the trial court had jurisdiction of the subject matter, jurisdiction of the person, jurisdiction under the law to pronounce the judgment and sentence rendered, and inquiry in habeas corpus is limited to these questions. Ex parte Hampton, supra; Ex parte Franks, 88 Okla. Cr. 128, 200 P. 2d 778; Ex parte Custer, 88 Okla. Cr. 154, 200 P. 2d 781; Ex parte Story, 88 Okla. Cr. 358, 203 P. 2d 474; Ex parte Merton, 89 Okla. Cr. 76, 205 P. 2d 340. For all of the foregoing reasons the petition fails to state a cause of action for relief by either mandamus or habeas corpus and the same is therefore dismissed.

JONES, P. J., and POWELL, J., concur.


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    AKERS v. STATE.
    No. A-11011.
    Nov. 9, 1949.
    (212 P. 2d 170.)
    Hughes & Hughes, Hobart, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Sam H. Lattimore, Asst. Atty. Gen., for defendant in error.
   JONES, P. J.

The defendant, Floyd Akers, was charged by information filed in the county court of Jackson county with the unlawful possession of intoxicating liquor, was tried, convicted and sentenced to serve 30 days in the county jail, and pay a fine of $100 and costs, and has appealed.

It is contended that the trial court erred in overruling the motion to suppress evidence filed and presented by the defendant prior to the commencement of the trial.

A search warrant was issued for the premises of the defendant, Floyd Akers, which were described in the warrant as being certain buildings, dugouts, and out houses, situated on lots one and two in block one, in the original town of Olustee in Jackson county, Okla.

It was the contention of the defendant that his residence was situated on lots one, two, three, and four, of block one; that a small portion of his residence was situated on lot one, and the house was situated on lots two, three, and four; that the intoxicating liquor was located on lot three and therefore the warrant was not sufficient to authorize a search on block three where the intoxicating liquor was found. Furthermore, that Pat Reeves, the son-in-law of defendant, occupied that portion of the house which set on lot three, and that the officers were without authority to search the living quarters of Pat Reeves.

There was some conflict in the evidence as to the exact location of the house of defendant. J. W. Russell, deputy sheriff, testified that the house was on lots one and two of block one. It appears from the examination of the defendant that the defendant and his family, and his son-in-law and his family all use the same kitchen. The defendant swore on the motion to suppress evidence that he had rented two bedrooms to his son-in-law. The kitchen was at the west end of the hallway which led from the livingroom and separated that part of the house in which the defendant contended he and his family lived from the bedrooms which the defendant claimed were occupied by his son-in-law.

It appears that the officers discovered a loose board in the doorway between the bedroom on the south side of the hall and the hall itself, and that by lifting up the loose board the officers found a large quantity of intoxicating liquor, consisting of 98 pints of mixed brands of whisky, three quarts of wine, four pints of dry gin, and one-half four-fifth quarts of whisky.

The defendant testified that a part of the property which he rented to his son-in-law was on lot two. In Freeman v. State, 72 Okla. Cr. 137, 113 P. 2d 843, it is held:

“The constitutional provision guaranteeing one immunity from unlawful search and seizure is personal to the occupant of the premises involved; and one accused of crime will not be heard to object that a search is unlawful where the accused does not contend that he owns or has possession of the property or premises searched.”

Other cases to the same effect are Tacker v. State, 72 Okla. Cr. 72, 113 P. 2d 394; Sparks v. State, 72 Okla. Cr. 330, 116 P. 2d 219.

Since defendant denied that he owned the liquor and claimed that he did not have control of the premises where the liquor was found, under the authority of the above cases, he may not raise the objection that the search was unlawful.

Counsel further contend that the evidence is insufficient to support the conviction and asserts that the proof conclusively shows the liquor was found under that portion of the house located on lot three which was occupied by Pat Reeves and his family.

There was no testimony by the state to contradict the evidence of defendant that his son-in-law had been living in a part of the house, but the testimony of the defendant makes it clear there was no separate control of any of the house by the son-in-law. All of the parties freely moved from one part of the house to another. They all used the same kitchen and they both used the hallway which connected the kitchen with the rooms admittedly occupied by defendant and his wife with those allegedly occupied by Reeves. The liquor was found at the door which separated the hallway from the bedroom of Reeves, and the officers did not have to enter the bedroom to find and seize the liquor. The circumstances pointing to the guilt of the defendant, which included his admitted ownership of the entire house and the occupancy of a large part thereof, were sufficient to justify the submission of the case to the jury.

The judgment and sentence of the county court of Jackson county is affirmed.

BRETT and POWELL, JJ., concur.


text:
    ROLER v. STATE.
    No. A-11026.
    Nov. 16. 1949.
    (212 P. 2d 158.)

      Hardin Ballard, Purcell, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., for defendant in error.
   JONES, P. J.

The defendant, Geneva Roler, was convicted in the county court of McClain county of the offense of unlawful possession of intoxicating liquor, and was sentenced to serve six months in the county jail and pay a fine of flOO.

The trial court illegally suspended the jail sentence, but that action is not questioned by the appellant. State v. Smith, 83 Okla. Cr. 188, 174 P. 2d 932.

For a reversal of the conviction, it is contended that the court erred in overruling a motion to suppress the evidence presented by the defendant. At the commencement of the trial, counsel for the defendant orally dictated into the record a motion to suppress the evidence for the reason that there was no search warrant issued or served in the case, and that if a purported warrant was ever issued, it was insufficient to authorize a search of the premises of the defendant.

In support of the motion, counsel for the defendant swore that he had made a search for a warrant and had been unable to find where any search warrant whatever was issued prior to the alleged search of the home of defendant; that he talked to the county attorney and requested the county attorney to furnish him with copy of the warrant, if one was issued, or advise him, in what court the same was issued, but that the county attorney refused to give him any information.

The state then presented the sheriff as a witness. He testified that on December 27, 1946, he executed and filed with the county judge of McClain county a complaint for a search warrant for the private residence of defendant, and that the county judge did at that time issue a warrant based on such complaint; that he delivered the warrant to two of his deputy sheriffs with instructions to make a search of the premises described in the warrant; that the next morning after the warrant was executed by the deputies, he prepared a return to be made on the warrant. He then identified what he termed was a copy of the return which he made to the warrant, and over objection of defendant’s counsel, the alleged copy of the sheriff’s return was admitted in evidence. The sheriff testified that he did not remember whether he ever made a return to the warrant or filed it with the clerk. The witness then identified what he said was a copy of the complaint which he signed on December 27, 1946, for the purpose of obtaining a search warrant to search the home of defendant. He was then asked, “Do you know where the original is of that instrument?” To which he answered, “Well, I presume they are in the office, I don’t know whether they were filed or not”. The court then, over objection of counsel for defendant, admitted the purported copy of the complaint in evidence.

Counsel for defendant then presented the court clerk as a witness who swore that he kept a record in his office of the complaints filed before the county judge for the issuance of a search warrant, and also kept a record of the warrants issued together with the returns made thereon; that he had made on that day a complete check of his records and that there was no evidence of a complaint being filed on December 27, 1946, for the search of the residence of defendant, and that he had found nothing to show that a warrant had ever been issued or returned in connection with the purported complaint.

At the conclusion of this evidence, the court overruled the motion to suppress.

Counsel for defendant has written a brief citing many authorities to sustain his position. There has been no answer brief filed on behalf of the state. Under such circumstances, we assume that ■ counsel for the state is unable to find any authorities to sustain the action of the court in overruling the motion to suppress the evidence.

In Uhlenhake v. State, 58 Okla. Cr. 248, 52 P. 2d 117, 120, this court stated:

“In issuing a search warrant the statute requires the evidence of probable cause to be made a permanent record in the form of a verified complaint or an affidavit.
“The complaint or affidavit and the search warrant should be matters of public record in the office of the justice of the peace who issued the search warrant.
“The statement of the custodian of a record as to its contents is no more valuable than the statement of any other person who has read it. The record itself is the evidence, and the affidavit and the warrant issued thereon is the best evidence of what they contain.
“Where a record is lost or destroyed, the statute provides for substitution.
“Section 810, St. 1931 [67 O. S. 1941 § 1], provides: ‘Whenever the record of any judgment or decree, or other proceeding, of any court of this State, or any part of the record of any judicial proceeding or any other public records, shall have been lost or destroyed, any person interested therein may, on application by petition, in writing, under oath, to the proper court of the county wherein the records were kept, and on showing, to the satisfaction of such court, that the same has been lost or destroyed without fault or neglect of the person making such application, obtain an order from such court, authorizing such defect to be supplied by a duly certified copy of such original record, where the same can be obtained; which certified copy shall, thereafter, have the same effect as such original record would have had, in all respects.’
“Section 3233, St. 1931 [22 O. S. 1941 § 1233], provides that a return to a search warrant shall be verified by the affidavit of the officer. The written return to the execution of a search Avarrant is ordinarily the best evidence of what the executing officers did. Welch v. State, 30 Okla. Cr. 330, 236 P. 68.
“Under the statute duly certified copies of the record in question would have the same validity and effect as the original complaint, or affidavit and warrant issued thereon. It would have been proper for the county attorney to ask for such substitution as soon as the loss was discovered.
“The Constitution of our state designed as a bulwark against the power of official oppression is broad enough to accomplish its purpose.
“In Foreman v. State, 8 Okla. Cr. 480, 128 P. 1101, 1102, we said: ‘The Bill of Rights is something more than a mere compilation of glittering generalities. Some of its provisions constitute a formal and public declaration of popular rights and liberties. The guarantee in article 2, § 30 * * * that the right of the people to be secure in their persons, houses, papers, and effects against unreasonable' searches or seizures shall not be violated, should be respected by all peace officers and law-abiding citizens.’
“And the statutes are in accordance with the Bill of Rights.”

To the same effect, see the case of Whitwell v. State, 65 Okla. Cr. 178, 83 P. 2d 881, 882, where it is held:

“The written return to the execution of a search warrant is ordinarily the best evidence of what the executing officers did.
“It is a well established rule of the law of evidence, that the best evidence must be produced of which the nature of the case is capable.
“The rule of evidence requiring that the best evidence shall be produced, to the exclusion of secondary and hearsay, is violated by the admission of oral testimony showing the recitals of a search warrant and the return of the officer executing the same.”

Counsel for the defendant made a prima facie showing that the search of the home of defendant was illegal for the reason that there was no evidence that a valid warrant was issued. The showing made by the state did not comply with the best evidence rule of law as shown in the above-cited decisions and was insufficient to overcome the prima facie case made by the defendant as to the illegality of the search.

Tbe judgment of tbe county court of McClain county is reversed, with directions to discharge defendant.

BRETT and POWELL, JJ., concur.