Ex parte Gilbert

• Decision Date: 30 October 1931
• Docket Number: A-8197.
• Citation: 4 P.2d 695,52 Okla.Crim. 260
• Parties: Ex parte GILBERT.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

4 P.2d 695

52 Okla.Crim. 260

Ex parte GILBERT.

No. A-8197.

Court of Criminal Appeals of Oklahoma

October 30, 1931

Syllabus by the Court.

Under sections 2303 and 2774, Comp. St. 1921, where a defendant is convicted of two or more crimes before sentence has been pronounced for either, the judgments and sentences shall run consecutively, unless the judgment and sentence in the second or subsequent conviction shall specifically designate that it shall run concurrently with the judgment and sentence of the first or prior conviction or convictions, and, when so specifically stated, it shall run concurrently.

Original application of Bennie Gilbert for writ of habeas corpus.

Writ denied.

J. M Roberts, of McAlester, for petitioner.

J Berry King, Atty. Gen., and Robert D. Crowe, Asst. Atty Gen., for respondent.

DAVENPORT P.J.

This is an original petition in habeas corpus of Bennie Gilbert asking to be released from custody of the warden of the state penitentiary, on the ground that he is unlawfully restrained of his liberty by said warden.

The facts set forth in plaintiff's petition, in substance are as follows: On the 17th day of February, 1923, petitioner was sentenced to serve a ten-year term of imprisonment to begin at and from the 17th day of February, 1923. The petitioner was convicted on another charge, and on the 23d day of February, 1923, petitioner was sentenced to the penitentiary to serve a term of two years, the imprisonment to begin at and from the 23d day of February, 1923. That on the 2d day of March, 1923, petitioner was sentenced to the penitentiary for a term of seven years; term of imprisonment to begin at and from the 2d day of March, 1923.

Petitioner further alleges that he was committed to the penitentiary on the 2d day of March, 1923, to serve the sentences imposed upon him by the court, and that he has served all the time specified for the aforesaid sentences, and the said warden refuses to release him, and that he is now imprisoned contrary to the order of the aforesaid courts and contrary to law.

The warden of the penitentiary has filed a response in which he states and shows that the petitioner was committed to the penitentiary on the 3d day of March, 1923, as No. 12898, upon a judgment and sentence entered on the 17th day of February, 1923, which sentence was for a term of ten years, and admits that the petitioner was sentenced on the 2d day of March, 1923, to serve a term of seven years in the penitentiary and on the 23d day of February was sentenced to serve a term of two years in the penitentiary. Respondent further states that it is nowhere stated in said judgment and sentence, or either of them, that the term of confinement therein provided shall run concurrently, and that he is holding the petitioner under and by virtue of the judgment and sentence of the court made and entered on the 23d day of February, 1923, and denies he is illegally restraining petitioner.

The only question to be determined in this case is the question, Does the fact that in each of the three sentences the court in its judgment fixed the date when the term of imprisonment begins make these judgments run concurrently, in the absence of any order of the court directing that the judgments and sentences run concurrently? Petitioner contends that, for the reason that in each of the three sentences the date the sentence should begin makes his sentences run concurrently, and having served the ten-year sentence, he has served the time for all the sentences imposed upon him, citing, in support of his contention, Ex parte Howard, 2 Okl. Cr. 563, 103 P. 663; Ex parte McClure, 6 Okl. Cr. 241, 118 P. 591; Ex parte Bert Roller, 3 Okl. Cr. 384, 106 P. 548; Ex parte Ray, 18 Okl. Cr. 167, 193 P. 635; Ex parte Smith, 33 Okl. Cr. 175, 242 P. 284.

The respondent in his return insists that it does not follow as a matter of law that, because the trial...