Barger v. Burford, A-11440
| Citation | 93 Okla.Crim. 77,225 P.2d 196 |
| Decision Date | 29 November 1950 |
| Docket Number | No. A-11440,A-11440 |
| Parties | BARGER v. BURFORD. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Syllabus by the Court.
1. Habitual criminal statute, 21 O.S. 1941 § 51, does not create or define a new or independent crime, but describes circumstances wherein one found guilty of a specific crime may be more severely penalized because of his previous conviction, as alleged and found. 'Habitual criminality' is a state, and not a crime.
2. The allegation of previous conviction is not a distinct charge of crime, but is necessary to bring the case within the habitual criminal statute, and pertains only to the punishment.
3. The maximum punishment for burglary in the second degree is seven years imprisonment in the penitentiary, while the minimum punishment for burglary in the second degree after former conviction of a felony is ten years in the penitentiary.
4. Where accused is given a sentence of ten years imprisonment upon a plea of guilty to 'burglary in the second degree as charged in the information herein', the judgment and sentence is not void because of such notation in the judgment and sentence since the information charged the crime of burglary in the second degree after two former convictions of felonies.
Charles R. Barger, per se.
Mac Q. Williamson, Atty. Gen., for respondent.
This is an original action by the petitioner, Charles R. Barger, by which he seeks to obtain his release from confinement in the state penitentiary.
The sole basis for this action is the contention of petitioner that the judgment and sentence recites that petitioner entered a plea of guilty to a charge of second degree burglary and was sentenced to serve a term of ten years in the state penitentiary. There is attached to the petition a certified copy of the judgment and sentence entered on a plea of guilty and among the recitals in this instrument is the following: 'It is therefore by the Court ordered, adjudged and decreed that the defendant, Charles Barger, is guilty of the crime of second degree burglary, as charged in the information, and that as a punishment therefor he be confined in the State Penitentiary at McAlester, Oklahoma, for a period of ten years, to begin upon defendant's delivery to the warden thereof.'
Also attached to the petition are certified copies of the criminal complaint filed against the accused before the committing magistrate; a certified copy of the journal entry filed by the magistrate ordering the petitioner held to await trial in the district court on such charges as may be preferred against him. The certified copy of the information attached to the petition alleged the crime of burglary in the second degree after two former convictions for the crimes of burglary in the second degree, one of which was committed on February 24, 1939 and another committed on January 16, 1946.
From the allegations of the petition and the recitals of the instruments attached thereto and made a part of the petition it appears that the information was read at length to the accused in open court by the county attorney before the plea of guilty was entered. This cause was submitted on a demurrer to the petition filed by the Attorney General.
It is true that the punishment for burglary in the second degree shall not exceed seven years. 21 O.S. 1941 § 1436. However where the information charges the crime of burglary in the second degree after former conviction of a felony the minimum sentence which could have been assessed upon a plea of guilty was a term of ten years imprisonment in the state penitentiary. Thus we see that the petitioner upon his plea of guilty to the charge contained in the information on file against him received the minimum sentence.
The question then resolves itself into the inquiry as to whether the recital in the judgment and sentence that the plea of guilty was entered to the crime of 'burglary in the second degree as charged in the information filed herein' invalidated the judgment by reason of the court failing to insert that the plea of guilty was to the crime of burglary in the second degree after former conviction of a felony.
This identical question was before the court in the case of Ex parte Shockley, 78 Okl.Cr. 101, 144 P.2d 118, 119, wherein this court stated:
'The contention that the judgment and sentence is void is based upon the fact that it does not recite the fact that petitioner was charged with a subsequent offense, and that it only recited that he had plead guilty to 'attempt to kill,' and that the punishment assessed by the court was for a period of twelve years...
To continue reading
Request your trial
-
Carter v. State
...may be more severely penalized because of his previous conviction; that habitual criminality is a state and not a crime. Barger v. Burford, 93 Okl.Cr. 77, 225 P.2d 196; Johnson v. State, 79 Okl.Cr. 71, 151 P.2d 801. While we are in accord with the proposition that the second and subsequent ......