Ex parte Darr
| Decision Date | 18 June 1947 |
| Docket Number | A-10869. |
| Citation | 182 P.2d 523,84 Okla.Crim. 352 |
| Parties | Ex parte DARR. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Habeas corpus proceedings by Pete Darr.
Writ denied.
Syllabus by the Court.
1. On habeas corpus, this court will not look beyond the judgment and sentence of any court of competent jurisdiction as to mere irregularities of procedure or errors of law on questions of which the court has jurisdiction.
2. The writ of habeas corpus cannot be used to perform the office of writ of error on appeal but will be limited to cases in which the judgment and sentence attacked are clearly void.
3. Where the court has jurisdiction of the person and jurisdiction of the crime charged and the judgment and sentence are not in excess of the statutory limits of the court's power to pronounce, the same is not void.
John J Carney, of Oklahoma City, for petitioner.
Mac Q Williamson, Atty. Gen., and Sam H. Lattimore, Asst. Atty Gen., for respondent.
The petitioner, with the aid of counsel, filed herein on April 3, 1947, his petition for writ of habeas corpus, alleging he is unlawfully confined in the state penitentiary, at McAlister, Oklahoma. He complains of two separate judgments rendered against him in the district court of Lincoln County, numbered 2197 and 2199, wherein in each case he was sentenced to serve forty years in the penitentiary for robbery with firearms of banks at Prague and Chandler, Oklahoma.
The petition for writ of habeas corpus alleges first that the petitioner did not have the means to employ counsel and second, that he did not have the aid of counsel, and third, that he did not have the aid of counsel of his own choosing. The record, as revealed by certified copies of the criminal appearance dockets in both cases, does not support the contention of the petitioner. These dockets disclose that after being charged by information and on December 1, 1930, the petitioner was present in person and represented in the district court by Jimmie Mathis and waived the reading of the information and entered a plea of not guilty. That on December 27, 1930, the cases were set for trial January 13, 1931.
That, on January 13, 1931, it appeared, an application for continuance was filed, stating that defendant was without counsel. Thereupon, the court appointed M. A. Cox, a reputable and able lawyer of Chandler, Oklahoma, to represent the defendant. The record discloses that M. A. Cox ably represented the petitioner throughout the trial, attacking the sufficiency of the information, the sufficiency of the State's evidence, requesting a directed verdict, and after verdict of the jury seasonably filed a motion for new trial and presented same which was overruled and giving notice of intention to appeal and procuring 60-10-5 days time in which to make and serve, sign and settle case-made as a proper predicate for appeal. The record discloses that from this proceeding, no appeal was perfected by the petitioner.
In cause No. 2197, the record is the same until both the State and the defense rested in the trial, whereupon, the defendant, by aid of counsel, asked leave to withdraw his plea of not guilty and enter a plea of guilty, all of which was granted and done.
In both cases, January 16, 1931 was set for sentence day and in both cases the defendant was sentenced to forty (40) years in the penitentiary. The court under the law, § 801, Title 21 O.S.A. might have imposed the death sentence in either case.
It is therefore...
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... ... It has repeatedly been held that ... the writ of habeas corpus cannot be substituted for an ... appeal. Ex parte Critser, Okl.Cr.App., 198 P.2d 228, not yet ... reported in State reports; Ex parte Broyles, Okl.Cr.App., 178 ... P.2d 652, not yet reported in State reports; Ex parte Darr, ... Okl.Cr.App., 182 P.2d 523, not yet reported in State reports; ... Ex parte Mayfield, Okl.Cr.App., 179 P.2d 934, not yet ... reported in State reports; Ex parte Thomas, 56 Okl.Cr. 258, ... 37 P.2d 829; Ex parte Miles, 56 Okl.Cr. 69, 33 P.2d 636; Ex ... parte Faber, 56 Okl.Cr. 177, 35 P.2d ... ...
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