Ex parte Cook

• Decision Date: 09 July 1947
• Docket Number: A-10901.
• Parties: Ex parte COOK.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

183 P.2d 595

84 Okla.Crim. 404

Ex parte COOK.

No. A-10901.

Court of Criminal Appeals of Oklahoma

July 9, 1947

Original proceeding in habeas corpus to secure release of John R. Cook from confinement in state penitentiary.

Judgment and sentence vacated and set aside, writ granted, and warden of state penitentiary commanded to deliver petitioner into custody of sheriff to be held pending disposition of charge against him in District Court.

Where questions raised in habeas corpus petition for release from penitentiary concern denial of some of petitioner's statutory or constitutional rights in connection with arraignment and pronouncement of judgment and sentence against him, proceedings after filing of information in district court should be vacated and petitioner should be remanded to such court and proceeded against therein as if never arraigned on such information instead of being unqualifiedly discharged from incarceration.

Syllabus by the Court.

1. Under Bill of Rights (Art. 2, § 20, Okla. Const.) an accused has the right to consult with counsel and to be fully advised as to his rights and as to the consequences of his act before entering his plea to the indictment or information.

2. A plea of guilty should be entirely voluntary, and should be made by one competent to know the consequences thereof, and should not be accepted until after the defendant has been fully advised by the court of his rights and the consequences of his plea.

3. When a person is held in custody under a void order of commitment or is imprisoned without due process of law under the sentence of any court of the state, it is not only within the authority of this court but it is its duty upon habeas corpus to inquire into the illegality of the commitment when the matter is properly brought before it by petition, and if it be adjudged that the order of commitment was made without authority of law, the person will be entitled to a discharge from custody in order to preserve the constitutional right of all persons not to be deprived of liberty without due process of law.

4. A person prosecuted for a crime may waive the rights guaranteed to him by Bill of Rights, relating to trial by jury, right to be heard by counsel, etc.

5. Courts indulge every reasonable presumption against a waiver of fundamental constitutional rights, and do not presume acquiescence in their loss.

6. Whether one accused of crime has waived his right to the assistance of counsel for his defense must depend in each case upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused.

7. Habeas corpus is an available remedy to one who has, without having effectively waived his constitutional right to the assistance of counsel, been convicted and sentenced and to whom expiration of time has rendered relief by an application for a new trial or by appeal unavailable.

8. One charged with crime is as much entitled to assistance of counsel in preparing for trial as at the trial itself.

9. In a felony case, where the defendant is unable to employ counsel and is incapable adequately of making his own defense because of ignorance feeble-mindedness, illiteracy, or the like, it is the duty of the court, whether requested or not, to assign counsel for him as a necessary requisite of due process of law.

10. A judgment of conviction of one who did not effectively waive his constitutional right to the assistance of counsel for his defense is void as having been rendered without jurisdiction.

11. Where the accused is young, illiterate, and inexperienced in court proceedings, and charged with felony, the court should proceed with caution. The caution to be exercised depends upon the age and experience of the accused and the gravity of the offense charged.

12. A judgment and sentence to the maximum term of imprisonment in the State Penitentiary on plea of guilty to burglary, by uneducated, illiterate, and inexperienced youth, seventeen years of age, will be vacated and set aside where record discloses that upon day accused was arrested he was arraigned in District Court without counsel and sentenced less than an hour after his arraignment before a Justice of Peace, and record further discloses that parents of accused, who lived in county, did not learn of his arrest until after he was sentenced to penitentiary. Under circumstances there was not an intelligent waiver of the constitutional rights of the accused and court should have appointed counsel to represent the accused as a necessary requisite of due process of law before accepting a plea to the felony charge filed against him.

13. Where questions raised in habeas corpus petition for release from penitentiary concern denial of some of petitioner's statutory or constitutional rights in connection with his arraignment and pronouncement of judgment and sentence against him, proceedings after filing of information in district court should be vacated, but petitioner should be remanded to such court and proceeded against therein as if never arraigned on such information, instead of being unqualifiedly discharged from incarceration.

Geo. C. Crump, of Wewoka, for petitioner.

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

JONES Judge.

This is an original proceeding in habeas corpus instituted by John R. Cook, a minor of the age of seventeen years, through his father and next friend, Roy Cook, to secure his release from confinement in the State Penitentiary at McAlester.

The verified petition alleged in substance that the petitioner was arrested about 3 a. m. on January 23, 1947, and placed in jail at Ada, Oklahoma. That on the same day, a complaint charging the crime of burglary in the second degree was filed in the Justice of Peace court. That the petitioner was brought before the Justice of Peace without a warrant having ever issued on said complaint and required to plead to said criminal complaint filed against him in the Justice of Peace court. That neither the County Attorney nor any of his assistants appeared before the Justice of Peace at the time of his arraignment before the Justice of Peace, but that the County Attorney telephoned the Justice of Peace that the petitioner wanted to plead guilty. That within a very few minutes after he appeared before the Justice of Peace, he was taken by the Sheriff before the District Judge of said county and required to plead guilty to an information which had just been filed against him. That he does not know nor remember what happened in the District Court, and did not know that he was entitled to have counsel to represent him, nor did not know that he was entitled to twenty-four hours in which to plead to the information and to have a copy of the information filed against him.

The petition further alleged that the officers who had charge of the petitioner were in such a hurry to get the petitioner into the penitentiary, that the transcript of the Justice of Peace was not certified before filing it in the District Court. That after the petitioner was placed in jail, he was denied the right to call his parents who lived in Ada, or communicate with any of his friends. That the only persons he was permitted to talk to were officers and the owner of the store he was alleged to have burglarized, who advised him to go ahead and plead guilty and it would be easier on him to do so. That petitioner was only seventeen years of age and had reached the seventh grade in school. That he had never been convicted of any crime and was wholly ignorant of his rights and by reason of his youthfulness and ignorance, he did not understand the nature and consequences of his plea. That after a plea of guilty was entered, the District Judge sentenced him to seve the maximum term of seven years imprisonment in the state penitentiary, and he was immediately transported to the penitentiary by the sheriff. The petitioner further alleges that the judgment and sentence was void because of the failure of the court to protect the constitutional rights of defendant in the premises.

The response of the warden stated that he was detaining and imprisoning the petitioner, John R. Cook, in the state penitentiary by reason of the judgment and sentence pronounced by the District Court of Pontotoc County, on January 23, 1947, after he was convicted in said court for the crime of burglary in the second degree and the said petitioner was sentenced to serve a term of seven years at hard labor.

Prior to the filing of the petition in this court an application for a writ of habeas corpus was presented to the District Court of Pittsburg County. The petitioner, his father, and one other witness appeared before the District Court and testified at length concerning the allegations of the petition. A transcript of such testimony was prepared and admitted in evidence before this Court in support of the petition at the time said petition was heard. The District Judge and Assistant County Attorney of Pontotoc County also appeared before the Criminal Court of Appeals at the time of said hearing and testified to what occurred at the time of the arraignment and plea of the accused. In addition, this Court permitted affidavits of the Chief of Police and the County Jailer to be filed which affidavits related some of the occurrences in connection with the arrest and plea of guilty entered by the petitioner.

The proof of the petitioner showed that he was seventeen years of age on December 3, 1946. That his father had lived near Ada for the past twenty years, during which time he had been a pumper for an oil company. That the father of petitioner did not learn of his arrest or that he had been sentenced to the penitentiary until ...