Ex parte Elgan
| Decision Date | 14 September 1912 |
| Citation | 126 P. 584,8 Okla.Crim. 75,1912 OK CR 381 |
| Parties | EX PARTE ELGAN. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Syllabus by the Court.
Where a special judge is elected or agreed upon to sit in a particular case, which is not finally determined at the term at which he is elected or agreed upon, and he presides at a subsequent term or terms, at which his authority is recognized by the parties, they thereby waive any objection that he was not re-elected or reagreed upon at such subsequent term or terms.
Petition of James M. Elgan for a writ of habeas corpus. Writ denied.
William Edens, of Guymon, for petitioner.
Smith C. Matson, Asst. Atty. Gen., for the State.
This is an application for writ of habeas corpus by petitioner, James M. Elgan, for discharge from imprisonment by R. W. Dick warden of the state penitentiary at McAlester, Okl. The petitioner alleges that his restraint is illegal, because he is confined by a commitment from the district court of Texas county, pursuant to a judgment of conviction for a felony rendered in said court by one W. C. Crow, sitting as special judge; that the Honorable R. H. Loofburrow, regular district judge, was disqualified to sit in this case, because he was prosecuting attorney in the case prior to his election as judge; and that at the March, 1908, term of said district court the county attorney and the defendant, through his attorneys, Wiley & Whittaker, agreed that the Honorable W. C Crow should preside as special judge in this case. It is further alleged that said case was continued from the March 1908, to the September, 1908, term of said district court, and that the said W. C. Crow continued at said term to sit as special judge in the case, and without further agreement, election, etc., tried the case and rendered judgment therein; that the trial before the Honorable W. C. Crow as special judge at the September, 1908, term of said court was without authority of law and void, and that therefore petitioner is entitled to be discharged. In support of his application, petitioner presents a transcript of the record in the case in which the judgment was entered, and asks this court to review it to determine the merits of his application.
The record discloses that at the September, 1908, term of the district court of Texas county, on the 14th day of said month, the case was called, with Hon. W. C. Crow, special judge, presiding, and that the cause was set for trial by agreement of counsel on the 17th day of said month. The record nowhere discloses any objection to special Judge Crow presiding at the trial, and does not indicate whether he was selected anew at the September term or not. There is nothing in the record which even indicates that the authority or regularity of the acts of the special judge was ever questioned until now. The transcript before us simply says: "Hon. W. C. Crow, who is duly and regularly sworn to act as special judge in said cause, presiding." The trial proceeded for several days, judgment having been rendered against the petitioner on the 30th day of September, 1908. Counsel for petitioner urge that the court was without jurisdiction in this case and without authority to pronounce the judgment, and rely on Dodd et al. v. State, 5 Okl. Cr. 513, 115 P. 632.
As said by Furman, P.J., in Ellington v. State, 7 Okl. Cr. 252, 123 P. 186: ...
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