Ex parte Kirk
| Decision Date | 14 January 1953 |
| Docket Number | No. A-11855,A-11855 |
| Citation | 252 P.2d 1032,96 Okla.Crim. 272 |
| Parties | Ex parte KIRK. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Syllabus by the Court.
1. Constitutional immunity against being placed in jeopardy a second time is a personal privilege for the sole benefit of the accused. It may be waived by express consent or by implication from conduct indicative of consent or by failure to claim or assert the right in seasonable time.
2. The writ of habeas corpus cannot be resorted to for the purpose of discharging a petitioner on the ground of former jeopardy. Such plea must be presented in the trial court, and, if the decision of such court is adverse to the accused, the remedy is by appeal and not by habeas corpus.
3. Jeopardy, in its constitutional and common-law sense, has a strict application to criminal prosecutions only; and the word 'jeopardy', as used in the Constitution, signifies the danger of conviction and punishment which the defendant in a criminal prosecution incurs when put upon trial before a court of competent jurisdiction under an indictment or information sufficient in form and substance to sustain a conviction.
4. Order of warden of penitentiary taking away certain of the rights and privileges of prisoner because of an infraction of the rules of penitentiary by escaping from the penitentiary did not constitute a conviction for a crime and prisoner could not plead that he had been placed in jeopardy when he later was charged in the district court by information for the crime of escaping from the penitentiary.
Willard Gotcher, McAlester, for petitioner.
Lewis A. Wallace, Ass't Atty. Gen., for respondent.
This is an original action in habeas corpus instituted by the petitioner, Bill Kirk, to secure his release from confinement in the penitentiary.
The verified petition alleges that on May 21, 1941 while the petitioner was an inmate of the Oklahoma State Penitentiary by virtue of a commitment issued out of the District Court of Tulsa County he did escape from said penitentiary and was returned to the penitentiary on April 3, 1942; that thereafter, pursuant to the authority vested in the prison authorities by statute, 21 O.S.1951 § 443a, the warden of the state penitentiary charged the petitioner with violating the rules and regulations of the penitentiary and sentenced him to serve six months as a third class prisoner, put the accused in stripes and assigned him to what was known as the number one gang; that on May 2, 1945, while the prisoner was still an inmate of the Oklahoma State Penitentiary he again escaped from the penitentiary and was a refugee until November 12, 1948, at which time he was returned to the state penitentiary; that on November 13, 1948 the warden of the state penitentiary found the petitioner guilty of violating the rules and regulations of the penitentiary and entered an order reducing him to a prisoner third class and placed on high indefinitely.
That by reason of the escape of the prisoner from the penitentiary on May 21, 1941 he was charged in the District Court of Pittsburg County with the crime of escape under the statute, 21 O.S.1941 § 443; that the petitioner entered his plea of guilty to said charge and was by the district court sentenced to serve two years imprisonment in the penitentiary; that subsequent to his return to the penitentiary in 1948 he was charged with the crime of escape from the penitentiary and thereafter entered his plea of guilty to said crime and was sentenced on September 1, 1949 to serve a term of two years imprisonment for said offence.
That each of the times he was adjudged guilty of violating the rules and regulations by the warden of the penitentiary and given punishment for his conduct amounted to a sentence under the law, and that his subsequent sentence by the district court constituted placing the accused twice in jeopardy for the same offense contrary to Article 2, Section 21 of the Oklahoma Constitution, and that the judgment and sentence in each of said cases were void for this reason and the petitioner was entitled to his discharge from imprisonment on such account.
The attorney general has filed a demurrer to the information. In the case of Ex parte Zeligson, 47 Okl.Cr. 45, 287 P. 731, this court held:
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People v. Johnson
...or assert the right in seasonable time.' (Emphasis added)' Bass v. State, 489 P.2d 1343, 1344 (Okl.Cr., 1971), citing Ex parte Kirk, 96 Okl.Cr. 272, 252 P.2d 1032 (1953). Incidentally, this case contrary to this opinion holds a guilty plea waives the double jeopardy bar.5 'Only if jeopardy ......
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Price v. Reed
...738 [1962].14 "Jeopardy," as used in Art. 2, § 21, Okl. Const., applies only in criminal prosecutions. See, Ex Parte Kirk, Okl.Cr., 96 Okl.Cr. 272, 252 P.2d 1032, 1034 [1953] and Pickens v. State, Okl.Cr., 393 P.2d 889, 891 [1964]. In Pickens, the Court of Criminal Appeals said:"Jeopardy, i......
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...930; Patterson v. United States, 183 F.2d 327; Pagliaro v. Cox, 143 F.2d 900; State v. Mead, 130 Conn. 106, 32 A.2d 273; Ex parte Kirk, 96 Okla.Cr. 272, 252 P.2d 1032). In Matter of Escobar v. Roberts (29 N.Y.2d 594, 324 N.Y.S.2d 318, 272 N.E.2d 898, mot. to amend remittitur granted 29 N.Y.......
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Hall v. State
...407; Voran v. State, 536 P.2d 1322 (Okl. Cr. App. 1975); Stockton v. State, 508 P.2d 663 (Okl. Cr. App. 1973); Ex Parte Kirk, 96 Okl.Cr.App. 272, 252 P.2d 1032 (1953); Daniels v. State, 55 Okl.Cr.App. 298, 29 P.2d 997 (1934); Ex Parte Zeligson, 47 Okl.Cr.App. 45, 287 P. 731 (1930); Jeter v.......