Cody v. Page

• Decision Date: 27 November 1968
• Docket Number: No. A--14816,A--14816
• Citation: 447 P.2d 466
• Parties: 1968 OK CR 215 Kenneth John CODY, Petitioner, v. Ray H. PAGE, Warden, et al., Respondents.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 466

447 P.2d 466

1968 OK CR 215

Kenneth John CODY, Petitioner, v. Ray H. PAGE, Warden, et al., Respondents.

No. A--14816.

Court of Criminal Appeals of Oklahoma.

Nov. 27, 1968.

Syllabus by the Court

1. Habeas corpus is not a substitute for appeal and issues raised on appeal cannot be successfully argued again in support of a petition for a writ of habeas corpus after the conviction has been affirmed.

2. A defendant is not denied a speedy trial where he is given a new trial two months after his initial conviction on appeal was reversed and remanded for a new trial.

3. The rule that a juror cannot be challenged for cause on the sole ground that he is opposed to capital punishment and that a death sentence cannot be executed by a jury from which prospective jurors have been removed for cause who, without more, are opposed to capital punishment, is not applicable in a case where the jury recommended a sentence for a term of years.

Original proceedings in which Kenneth John Cody seeks his release from confinement by Writ of Habeas Corpus. Writ denied.

Kenneth John Cody, pro se, petitioner.

G. T. Blankenship, Atty. Gen., Charles Owens, Asst. Atty. Gen., for respondents.

PER CURIAM:

This is an original proceeding in which Kenneth John Cody, Sr., seeks a writ of habeas corpus. Petitioner is presently incarcerated in the Oklahoma State Penitentiary by authority of judgment and sentence entered in District Court of Oklahoma County where he was found guilty of the crime of rape in the first degree and his punishment fixed at ninety-nine years imprisonment. Petitioner, in his petition filed pro se, listed three contentions in support of his application. Subsequently, in an amended petition by Petitioner's trial attorney, four additional contentions were argued.

Petitioner's original conviction on this charge fixing his punishment at ninety-nine years was reversed by this Court on appeal for the failure to elect which act of sexual intercourse was being relied upon for conviction. Cody v. State, Okl.Cr.App., 361 P.2d 307, 84 A.L.R.2d 997. Petitioner was tried again, found guilty, and his second conviction affirmed by this Court. Cody v. State, Okl.Cr.App., 376 P.2d 625.

(1) Petitioner's first challenge to the judgment and sentence is that he was prosecuted under authority of an information rather than being prosecuted by an indictment rendered by a grand jury as required by the Fifth Amendment of the United States Constitution. This argument has been raised before in this Court and we have consistently held that in Oklahoma a prosecution may be by indictment or information, and a prosecution by information does not violate the Fifth or Fourteenth Amendment of the United States Constitution. Sisson v. State, Okl.Cr.App., 426 P.2d 379. Oklahoma Constitution, Article II, § 17.

(2) Secondly, Petitioner alleges that he was denied the right to a speedy trial. Apparently Petitioner contends that he was denied a speedy trial due to the length of time between the initial filing of an information against him and the time of his second trial. It is clear, however, from a review of the record that the State afforded Petitioner a speedy trial. On December 4, 1959, a preliminary information was filed against the Petitioner. On February 19, 1960, a jury found Petitioner guilty and judgment and sentence was pronounced on March 11, 1960. This judgment was reversed and the cause remanded for a new trial on April 5, 1961. The second trial began on June 12, 1961, with judgment and sentence pronounced on June 23, 1961. A review of these dates clearly indicates that Petitioner was not denied a speedy trial not prejudiced by an unnecessary delay in the proceedings against him.

(3) Thirdly, Petitioner argues that he was somehow prejudiced by the amended information used in the second trial. This contention is clearly without merit in the habeas corpus proceedings, as it was fully considered and answered in the opinion of this Court when the second conviction was affirmed. Cody v. State, Okl.Cr.App., 376 P.2d 625.

(4) Petitioner's amended petition alleges that he was denied a fair trial due to adverse publicity. In substance it appears that this matter was dealt with by this Court on appeal and there is no indication that there was such adverse publicity as would require a new trial under the ruling of this Court in Shapard v. State, Okl.Cr.App., 437 P.2d 565. We further find it significant that Petitioner filed a 'Demand for Public Trial' stating that:

'* * * to exclude any newspaper...