Ex parte Bailey
| Decision Date | 31 December 1936 |
| Docket Number | A-9225. |
| Citation | 64 P.2d 278,60 Okla.Crim. 278 |
| Parties | Ex parte BAILEY. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Syllabus by the Court.
1. The jurisdiction of the court to render a particular judgment and sentence by which a person is imprisoned is a proper subject of inquiry on habeas corpus.
2. Habitual criminal statute, Penal Code, article 6 (Sections 1817, 1818), 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.
3. The allegation of previous conviction is not a distinct charge of crime, but is necessary to bring the case within the statute and goes to the punishment only.
4. On application for writ of habeas corpus, mere errors or irregularities, in a judgment or proceeding of a court under and by virtue of which a person is imprisoned, which are not of such a character as render the judgment void, cannot be reviewed. To obtain release by such a proceeding, the judgment or sentence must be more than merely erroneous; it must be an absolute nullity.
5. In this case the judgment of conviction was for being "an habitual criminal." Held, the judgment is void, as it was for a crime other than the one charged, or an offense necessarily included as a matter of law.
Held further, there is no such offense known to our Penal Code.
Application of R. F. Bailey for writ of habeas corpus, to be directed to Jess H. Dunn, Warden of the State Penitentiary.
Writ granted, and petitioner discharged.
The Attorney General, Everett S. Collins, Co. Atty., of Sapulpa and Geo. B. Coryell, Jr., Asst. Co. Atty., of Bristow, for respondent.
In the application for writ of habeas corpus, for discharge from imprisonment in the State Penitentiary, R. F. Bailey alleges that he is unlawfully imprisoned and detained by the warden of the state penitentiary without authority of law under a judgment of conviction of the superior court of Creek county Bristow division, for the offense of being an habitual criminal, wherein he was sentenced to serve a term of five years in the state penitentiary. That on February 2, 1936, by commitment issued out of said superior court he was on said day delivered to the warden of the state penitentiary at McAlester.
That petitioner has been and is now held in custody to serve said sentence without due process of law, in that said judgment and sentence is void, in that said information does not charge a felony and charges only petit larceny, and the petitioner never had a preliminary hearing or waived the same to a charge of felony; that he did not plead guilty and was denied the benefit of counsel.
That for the reasons stated said superior court of Creek county was without jurisdiction to render said judgment and sentence.
It appears from the application and the answer thereto that the petitioner was arrested on Sunday evening, January 26, 1936, and placed in the city jail; the next morning was taken before C. W. Pounders, justice of the peace in and for the city of Bristow. The record recites:
"Complete Record of Proceedings
1-27-36 complaint filed charging 'Being a habitual criminal'
1-27-36 Warrant issued
1-27-36 Defendant arraigned and plead 'guilty'
1-27-36 Bound over to Superior Court of Creek County, Oklahoma.
Bristow Division. Appearance bond set in sum of $1,000.00 Commitment to Sheriff.
I hereby certify the above is a complete Record of Proceedings, together with the papers filed in this case, which papers are attached hereto.
On the same day an information was filed in the superior court charging: "R. F. Bailey did, in Creek County, State of Oklahoma, on or about the 24 day of January 1936 and anterior to the presentment hereof, commit the crime of Being an Habitual Criminal, in the manner and form as follows, towit: The defendant then and there being did then and there wilfully, wrongfully, unlawfully, and feloniously, take steal and carry away from the possession of the M. and P Store one sack of flour of the approximate value of $2.00 without the consent or knowledge of the owner thereof and with the intent then and there to convert the same to his own use and benefit and that this defendant has been convicted on numerous occasions of Petit Larceny and has served one term in the Penitentiary and was recently discharged from the County Jail from a prior conviction and that he has been an offender and convicted in Creek county of Petit Larceny charges and other charges at least three times, all of which is contrary to," etc.
The judgment and sentence is as follows:
"The State of Oklahoma vs. R. F. Bailey, Defendant. No. 934.
The prisoner, the above named, R. F. Bailey defendant, being personally present in open Court, and having been legally informed for the crime of being an habitual criminal and arraigned, and said defendant having entered herein his plea of guilty, as charged in said Information and being asked by the Court if he had any legal cause to show why judgment and sentence should not be pronounced against him, and he giving no good reason in bar thereof:
It is therefore Considered, Ordered, Adjudged and Decreed by the Court that said R. F. Bailey be confined in the State Penitentiary at McAlester, in the State of Oklahoma, for the term of Five (5) years at hard labor for said crime by him committed, said term of sentence to begin at and from the day of Del. A. D., 19-, and that said defendant pay the costs of this prosecution, taxed at $40.90, for which execution is awarded.
It is Further Ordered, Adjudged and Decreed by the Court that the Sheriff of Creek County, State of Oklahoma, transport said R F. Bailey to the penitentiary at McAlester, in the State of Oklahoma, and that the warden of said penitentiary do confine and imprison the said R. F. Bailey in accordance with this judgment, and that the Clerk of this court do immediately certify, under the seal of the Court and deliver to the Sheriff aforesaid,...
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Harrison v. State
...v. State, 175 Tenn. 309, 134 S.W.2d 151 (1939); State ex rel. Grandstaff v. Gore, 182 Tenn. 94, 184 S.W.2d 366 (1945); Ex Parte Bailey, 60 Okl.Cr. 278, 64 P.2d 278, 1936; People v. Lamphear, 6 Ill.2d 346, 128 N.E.2d 892 The greater number of our sister states have statutes which permit the ......
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Shane v. McLeod, A-12635
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