Ex parte Bailey

• Decision Date: 13 October 1948
• Docket Number: A-11120.
• Citation: 198 P.2d 660,87 Okla.Crim. 406
• Parties: Ex parte BAILEY.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

198 P.2d 660

87 Okla.Crim. 406

Ex parte BAILEY.

No. A-11120.

Court of Criminal Appeals of Oklahoma

October 13, 1948

Original proceeding by Searcy Bailey for writ of habeas corpus seeking his release from penitentiary.

Writ denied.

Syllabus by the Court.

1. Where a disputed question arises as to what occurred upon arraignment of one accused of crime, this court will give great weight to the recitation in the minutes of the court proceedings as to what occurred.

2. A person may waive the right guaranteed to him by the Bill of Rights relating to aid of counsel, etc.

3. When the right to assistance of counsel has been properly waived the assistance of counsel is no longer a necessary element of the court's jurisdiction to proceed to conviction and sentence.

4. The essential elements of jurisdiction for rendition of a valid judgment are jurisdiction of the person, jurisdiction of the subject matter, and authority under the law to pronounce the judgment and sentence rendered.

5. Relief by habeas corpus in limited to cases where the judgment and sentence of the court attacked are clearly void.

6. Record examined, held, judgment and sentence not void.

Searcy Bailey, pro se.

Mac Q Williamson, Atty. Gen., and Sam H. Lattimore, Asst. Atty Gen., for respondent.

BRETT Judge.

Petitioner Searcy Bailey, filed his petition for a writ of habeas corpus in this court on August 19, 1948, wherein he alleged that he is unlawfully imprisoned and restrained of his liberty by C P. Burford, Warden of the Penitentiary at McAlester Oklahoma, and in which he prayed that a writ of habeas corpus be directed to said Warden that he might be brought before this Court 'to do, submit to and receive what the law may require'. Petitioner alleges that he was convicted on January 5, 1946 of robbery by force of a taxicab driver in Jackson County, at Altus, Oklahoma.

Said matter came on for hearing before the Criminal Court of Appeals on the 23rd day of September, 1948. Petitioner made it appear by sworn allegations that he was denied his constitutional right to the aid of counsel, and that the county attorney promised him if he would enter his plea of guilty he would not receive more than ten years, that notwithstanding said agreement the court sentenced him to twenty-five years in the State Penitentiary.

At the hearing, on behalf of the state it appeared from the minutes of the court that he was not at any time denied any of his constitutional rights of which he complains; that the court tendered him aid of counsel and that he declined such tender and waived the right to such aid, and entered his plea of guilty.

Evidence on behalf of the state sworn to by Honorable Ross Rutherford Assistant County Attorney, was to the effect that petitioner was fully advised of all of his rights by the Honorable John B. Wilson, then District Judge of Jackson County, Oklahoma, and that said defendant stated that he did not desire an attorney. Further, Mr. Rutherford's evidence discloses that the petitioner was tendered counsel by Judge John B. Wilson, which he waived. Moreover, he swore that the petitioner was not induced to plead guilty under the belief that he would not get more than ten years, but affirmatively shows that no promise of any kind was made to the petitioner to induce him to plead guilty; that it was the preference of the County Attorney's office that the petitioner be convicted and the plea of not guilty be accepted for the reason that the petitioner admitted that he threatened one Talton Owens with an ice pick and that at the point of said ice pick forced the said Owens to surrender his money; that after obtaining the said money the petitioner then stabbed the said Owens and took his taxicab and left Altus, Oklahoma; that after being apprehended he confessed and entered a plea of guilty as hereinbefore indicated. Under the state of the record as herein made, under the law in this state, where a disputed question arises as to what occurred upon arraignment of one accused of crime, this court will give great weight to the recitation in the minutes of the court proceedings as to what occurred. Ex parte Meadows, 70 Okl.Cr. 304, 106 P.2d 139; Ex parte Motley, Okl.Cr.App., 193 P.2d 613, not yet reported in State reports; Ex parte Barnett, 67 Okl.Cr. 300, 94 P.2d 18. The record at the hearing both, as reflected in the evidence of Honorable Ross Rutherford and in the court minutes, discloses that the petitioner was advised of all his constitutional rights, and particularly as to aid of counsel by the Honorable John B. Wilson, then District Judge of Jackson County, Oklahoma. In Johnson v. State, 79 Okl.Cr. 363, 155 P.2d 259, 260, it was said: 'Where (accused) * * * has (been) fully...