Ex parte Custer

• Decision Date: 08 December 1948
• Docket Number: A-11149.
• Citation: 200 P.2d 781,88 Okla.Crim. 154
• Parties: Ex parte CUSTER.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

200 P.2d 781

88 Okla.Crim. 154

Ex parte CUSTER.

No. A-11149.

Court of Criminal Appeals of Oklahoma

December 8, 1948

Subsequent Opinion March 2, 1949.

Original proceeding in habeas corpus by Fred Custer to obtain petitioner's release from penitentiary.

Writ granted with directions.

Syllabus by the Court.

1. The scope of review on habeas corpus is limited to an examination of the jurisdiction of the court whose judgment of conviction is challenged.

2. The essential elements to the rendition of a valid judgment in a criminal case is jurisdiction of the person, of the subject matter and authority under the law to pronounce the judgment and sentence imposed.

3. Jurisdiction to render the particular judgment and sentence imposed is as essential to its validity as jurisdiction of the person and the cause.

4. 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.

5. The judgment of conviction and sentence must conform to the punishment prescribed, and be enforced in conformity with the statute.

6. The laws of this state take care, or should take care, the not the weight of a judge's finger shall fall upon any one except as specifically authorized.

7. A sentence is legal so far as it is within the provisions of law and the jurisdiction of the court over the person and offense, and only void as to the excess when such excess is separable, and may be dealt with without disturbing the valid portion of the sentence.

8. Where a judgment is a unit and not separable it is a judgment in toto, and if a portion of the same exceeds the court's jurisdiction to pronounce the judgment is void.

9. Where a judgment is void in toto, a proceeding in habeas corpus to correct the same may be maintained at any time after its rendition.

10. A first offender charged under the provisions of Title 63 O.S.A. 1941§ 417, with attempting to obtain narcotics by fraud, can under the provisions of Title 63 O.S.A. 1941 § 420, be sentenced to the penitentiary for a term not to exceed two years and a judgment and sentence in such a case to the penitentiary for three years is excessive and void.

11. A prisoner confined in the penitentiary on a judgment void for excessive punishment is entitled to relief by habeas corpus looking to the pronouncement of a valid judgment and sentence, because of the effect which the illegal part of the sentence has on his right to be considered for parole with or without petition therefor, after he has served one-third of the total term for which he could under the law be validly sentenced.

Fred Custer, Pro se.

Mac Q Williamson, Atty. Gen., and Sam H. Lattimore, Ass't. Atty. Gen., for respondent.

BRETT Judge.

This is an original proceeding in habeas corpus brought by petitioner Fred Custer, pro se, without the aid of counsel, complaining that he is unlawfully restrained of his liberty by C. P. Burford, Warden of the State Penitentiary at McAlester, Oklahoma. This court assumes a liberal attitude in construing petitions in habeas corpus filed by inmates of the penitentiary without the advice or assistance of attorneys. Ex parte Walker, Okl.Cr., 180 P.2d 670, not yet reported in State Reports.

The verified petition, information, judgment and sentence is sufficient to show the court's lack of jurisdiction to invoke the penalty imposed. Briefly, the petition alleges that the petitioner was charged under Title 63 O.S.A. 1941 § 417, as a first offender, with attempting to obtain by fraud narcotics in violation of the said statute. It further alleges to this charge he entered a plea of guilty, and that upon this plea he was sentenced to three years in the penitentiary, and that the sentence thus imposed is void. The reason given for this contention is that the sentence is contrary to, and in excess of the plain provisions of Title 63 O.S.A. 1941 § 420, the pertinent part thereof reading as follows, to-wit:

'Any person violating any provision of this Act shall upon conviction be punished, for the first offense, by a fine not exceeding One Thousand ($1,000.00) Dollars, or by imprisonment for not exceeding two (2) years, or by both such fine and imprisonment. * * *.' An examination of the information, judgment and sentence of the court confirms the petitioner's allegation that he was charged as a first offender, and therefore could only be sentenced to a maximum of two years in the penitentiary. The principal question which the case presents is, does this defect in the judgment and sentence constitute such an irregularity or error as to divest the court of jurisdiction? The answer to this question must be in the affirmative. In Ex parte Massengale, 67 Okl.Cr. 181, 93 P.2d 41, 42, this court said:

'The scope of review on habeas corpus is limited to an examination of the jurisdiction of the court whose judgment of conviction is challenged.'

The essential elements to rendering a valid judgment in a criminal case is jurisdiction of the person, subject matter, and authority under the law to pronounce the judgment and sentence imposed. A proceeding in habeas corpus is limited to a determination of these questions. Ex parte Mayberry, 78 Okl.Cr. 366, 148 P.2d 785; Ex parte Matthews, Okl.Cr., 186 P.2d 840, not yet reported in State Reports; Ex parte Gee, Okl.Cr., 183 P.2d 603; Ex parte Goff, Okl.Cr., 194 P.2d 206, not yet reported in State Reports; Ex parte Bailey, Okl.Cr., 198 P.2d 660, not yet reported in State Reports, and many other cases. All three elements must be present to constitute a valid judgment. This court has held that 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 and the remedy of habeas corpus is available whenever it is found that the court in which the petitioner was convicted was without jurisdiction to render the judgment. Ex parte Massengale, supra. Furthermore, in Ex parte McClure, 6 Okl.Cr. 241, 118 P. 591, 593, this court said:

'A judgment of conviction and sentence must conform to the punishment prescribed, and be enforced in conformity with the statute.

'Jurisdiction to render the particular judgment and sentence imposed is as essential to its validity as jurisdiction of the person and the cause.'

This being the law it is apparent that the court was without jurisdiction to impose a three year sentence when the maximum provided for by statute was only two years. In the body of the opinion in Ex parte Wagner, 58 Okl.Cr. 161, 50 P.2d 1135, 1140, the foregoing rule was followed and this court in quoting from In re Bonner, 151 U.S. 242, 14 S.Ct. 323, 326, 38 L.Ed. 149, said:

"'The laws of our country take care, or should take care, that not the weight of a judge's finger shall fall upon any one, except as specifically authorized. * * *"'

In Ex parte Wagner, supra, this court said:

'Jurisdiction to render a particular judgment and sentence is as essential as jurisdiction of the person and subject-matter. If the first does not exist, the sentence is void.'

It therefore clearly appears that under the facts herein presented the judgment and sentence of the district court of Washita County is void as being beyond the court's authority to impose. It might be argued that it is void...