Ex parte Cannis

• Decision Date: 16 October 1946
• Docket Number: A-10736.
• Citation: 173 P.2d 586,83 Okla.Crim. 113
• Parties: Ex parte CANNIS.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

173 P.2d 586

83 Okla.Crim. 113

Ex parte CANNIS.

No. A-10736.

Court of Criminal Appeals of Oklahoma

October 16, 1946

Original habeas corpus proceeding by Bill Cannis to secure his release from the state penitentiary.

Judgment vacated, and petitioner remanded to the custody of the sheriff of Tulsa County, Oklahoma.

Syllabus by the Court

1. A writ of habeas corpus cannot be used to perform the office of a writ of error on appeal.

2. Following the principle that every person is entitled to a fair and impartial trial, the Criminal Court of Appeals will give relief by habeas corpus if the facts are such that render the judgment and sentence void.

3. A petition for habeas corpus should not be scrutinized with technical nicety. Even if it is insufficient in substance, it may be amended in the interest of justice.

4. Every person charged with crime, whether guilty or innocent is entitled to a fair and impartial trial according to the due and orderly course of the law, and it is a duty resting upon the courts to see that the guaranty of such a trial conferred by the law upon every citizen, shall be upheld and sustained.

5. Under the constitutional guaranty, that a person accused of crime shall have the right to assistance of counsel, counsel appointed to defend the accused must be given a reasonable time within which to prepare for trial, to investigate the facts, and examine the law applicable to the case. This rule has special significance when one is charged with a capital offense.

6. The record discloses that counsel representing petitioner, and who had been paid for his services, was permitted by the court to withdraw on the day petitioner was to be tried, and that the public defender was appointed to defend him. No written motion for continuance was filed, and counsel announced: 'We are not ready, but we are ready to go to trial.' Witnesses who had been subpoenaed for the defense were not present, and defendant was not placed upon the stand. He was a foreigner and had only a limited knowledge of the English language. No interpreter was appointed. Under the above statement and the record, we are of the opinion that petitioner was not given a fair and impartial trial, and that the refusal to continue his case to another day of the term was manifest abuse of judicial discretion.

Jack L Spivey, of Oklahoma City, for petitioner.

Mac Q. Williamson, Atty. Gen., Owen J. Watts, Asst. Atty. Gen., for respondent.

BAREFOOT Judge.

Petitioner, Bill Cannis, filed in this court a petition for writ of habeas corpus on April 10, 1946, seeking his release from the State Penitentiary at McAlester, where he is confined by reason of a judgment and sentence of the district court of Tulsa County, entered May 17, 1938, wherein he was sentenced to a term of life imprisonment in the State Penitentiary for the crime of rape in the first degree.

This petitioner has heretofore filed a petition for habeas corpus in this court, and the same was denied on June 9, 1943. Ex parte Bill Cannes, 77 Okl.Cr. 71, 138 P.2d 561, 562. The petition in that case was filed by petitioner himself while confined in the penitentiary, and without the assistance of counsel. In the opinion in that case it was stated: 'A copy of the judgment and sentence is not attached to the petition and the number of years imprisonment meted out to the petitioner upon his conviction is not set forth in the petition.'

He is now represented by counsel of his own choice, and a full and complete record is before us.

A petition for habeas corpus was filed in the district court of Pittsburg County, on March 20, 1946, by petitioner, and denied, and thereafter the petition now under consideration was filed in this court.

Attached to the petition is a transcript of the evidence taken before the district court of Pittsburg County, and copies of other records, including a copy of the information, the appearance docket, and the judgment and sentence of the Tulsa County district court.

A response was filed by the Attorney General on behalf of the respondent, the Hon. R. B. Conner, Warden of the Oklahoma State Penitentiary, in which it was alleged that petitioner was held in custody by reason of the judgment and sentence of Tulsa County. It was contended in the response that the petition presents matters that can only be heard on appeal, and that could not be heard by habeas corpus.

An order to show cause was entered by this court, and a hearing had on May 22, 1946, at which time additional evidence and certain affidavits were presented, both by petitioner and by the State.

All of the above constitutes the record in the case to be considered in this hearing.

It is revealed that petitioner was born in Patris, Greece, August 15, 1899, and came to the United States at the age of 16 years. He worked in Greek restaurants in New York, and continually associated with people of Greek Nationality. He had attended school prior to leaving Greece and reached the sixth grade, but had never attended school after coming to America. He had some understanding of the English language, but he could not understand court proceedings conducted in English. Petitioner left New York and went to Dallas, Texas, but the record does not disclose the date. While living in Dallas, he evidently became associated with a woman by the name of Mrs. Winningham, who had three children, one a girl by the name of Mary Ann Opal Winningham aged 10 at that time, and two younger children, one of whom was a deaf mute. The petitioner and Mrs. Winningham and her three children left Dallas and went to Tulsa, Oklahoma, in the latter part of 1937, and lived together at different hotels in that city. Mrs. Winningham was considered by the proprietors of some of these hotels as the wife of petitioner, and is referred to as Mrs. Cannis. The record of the testimony taken at the trial of petitioner in Tulsa County is not a part of the record herein, counsel stating it was impossible to secure a copy of the same. However, there is attached to the petition a copy of the ex parte statement of Mrs. Millie Wormington, who was proprietress of the Brooklyn Hotel, 106 1/2 South Boston, where the parties lived, and the statement of Mary Ann Opal Winningham, the prosecutrix. These statements were taken by officers Robbins and Johnson after the arrest of petitioner, and while he was in jail.

The statement of Mrs. Wormington is as follows:

'Q. What is your name? A. Mrs. Millie Wormington.

'Q. What do you do, Mrs. Wormington? A. I am the proprietress of the Brooklyn Hotel, 106 1/2, S. Boston.

'Q. Do you know Bill Cannis? A. Yes.

'Q. When did you first meet him? A. About two years ago.

'Q. What were the circumstances? A. He and his wife, or at least I supposed it was his wife, came in to stay in room 12 at my hotel. They brought in three children, three girls, one of them was deaf and dumb, about four or five years of age, the others I don't remember the ages.

'Q. How long did they stay with you? A. Mrs. Cannis and the two littlest girls did not stay quite the week out. Bill and Mary Ann, the oldest girl, stayed the week. Then they moved. A couple of days after they moved Mrs. Cannis came back. A couple of weeks after that Bill and Mary Ann moved back into the same room. They moved from that room to room No. 1. Then I asked them to move because Mary Ann had no supervision at all. They were gone around three weeks and then Mary Ann came back up and begged me to take herself and Bill back and promised to be a better girl. Then I took them back and they had No. 1. Then her mother came and I judge she stayed four or five weeks and she left. Then she was gone for a short time and then came back and stayed practically all winter. Then Mrs. Cannis left again leaving Mary Ann there with Bill. Bill usually acted like a gentleman around the hotel but on two occasions he did bring women to his room, once while I was on my vacation and Mrs. Harp was in charge and once after I returned. After the second occurrence, I told him to move. When you were over there in November on an investigation (Nov. 26, 1937) I told you that he had been back the day before and was to come back but he never did come. Sometime around the first year, he and Mary Ann came back and stayed with me until February 14th, when they moved. They were gone a week. During that time Mary Ann ran away from him. He moved back with me on the 21st. Mary Ann wasn't with him.

'Q. During the time that Mary Ann and Bill Cannis stayed with you, they both occupied the same room and the same bed? A. Yes.

'Q. Did Bill Cannis say that Mary Ann was his daughter? A. Yes.

'Q. Do you know whether Mary Ann has started her periods or not? A. Yes, she has been a woman for over a year.'

The statement made by Mary Ann Opal Winningham was as follows:

'Q. What is your name? A. Mary Ann Opal Winningham.

'Q. How old are you? A. I'll be eleven years of age on May 19, 1938.

'Q. Do you know Bill Cannis? A. Yes.

'Q. How long have you known him? A. About two years and a half.

'Q. Where did you first meet him? A. Dallas, Texas.

'Q. When did you first come to Tulsa? A. I think it was about two years ago.

'Q. Was Bill Cannis at the hotel where you stayed? A. Yes. On the east side of Boston, I don't remember the number.

'Q. When did you first start staying with Bill Cannis alone? A. About one year ago. We stayed at the Brooklyn Hotel, 106 1/2 South Boston.

'Q. Did you occupy the same room and the same bed? A. Yes.

'Q. When was the first time you ever had intercourse with Bill Cannis? A. In Dallas.

'Q. Did you continue to have intercourse while you were staying at the Brooklyn Hotel? A. I don't know. Yes, I know, but I'm not going to tell.

'Q. Are you sure you don't know? A

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