Ex parte McClure

• Citation: 118 P. 591,6 Okla.Crim. 241,1911 OK CR 293
• Parties: Ex parte McCLURE.
• Decision Date: 28 October 1911
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

118 P. 591

6 Okla.Crim. 241, 1911 OK CR 293

Ex parte McCLURE.

Court of Criminal Appeals of Oklahoma

October 28, 1911

Syllabus by the Court.

The pardoning power, after conviction, is, under the Constitution, vested exclusively in the Governor. No court in this state has any pardoning power, and, where a defendant sentenced to imprisonment for six months in the county jail is released at the expiration of one month without authority of law, by order of the county court the time of his absence cannot be considered as spent in jail in satisfaction of the sentence.

While it is well settled that mere irregularity in proceedings resulting in the imprisonment, however flagrant, is not sufficient ground to discharge on habeas corpus, yet, if the petitioner be imprisoned under a judgment of a court which was without jurisdiction to render the judgment complained of, such want of jurisdiction may be inquired into on habeas corpus, and, if found to exist, is ground for a discharge of the petitioner.

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.

Application of I. N. McClure for writ of habeas corpus. Writ allowed.

Z. B Sanders and E. G. McAdams, for petitioner.

Robert Wimbish, Co. Atty., for respondent.

DOYLE J.

The petitioner, I. N. McClure, was tried and convicted in the county court of Pontotoc county upon an information filed therein September 13, 1911. The charging part of said information is as follows: "Did on or about the 13th day of September, 1910, unlawfully, wrongfully, and willfully go into and near the field of one F. A. Thomas, there situated and did then and there, in the presence and hearing of the said F. A. Thomas and W. H. Hatcher and Mrs. W. H. Hatcher use loud and vociferous language, and did use vulgar obscene, and indecent language, and did curse and swear in such a manner as did openly outrage public decency, and public morals, and did then and there injure the persons aforesaid." On December 19, 1910, petitioner was adjudged guilty of the crime of disturbing the peace, and was sentenced to be confined in the county jail of said county for a period of six months, and to pay a fine of $100 and costs of prosecution; that, in default of the payment of said fine and costs, said defendant be further confined in said county jail until said fine and costs are fully paid or satisfied according to law. Upon a commitment issued on said judgment, petitioner was confined in the county jail. On the 18th day of January the county court made an order fixing the amount of his bail bond, which was given, and petitioner was by order of the court released from said imprisonment.

It is alleged in the petition: "That it was not intended at the time said order fixing the amount of his appeal bond and extending the time for perfecting his appeal and making and approval of his supersedeas bond that his appeal would or should ever be perfected, but, on the contrary, it was specially agreed and understood by and between your petitioner and his attorneys, Galbraith & Sanders, and the said county judge, that your petitioner would file said bond and be discharged from prison on probation during good behavior, and that one of the conditions upon which your petitioner was discharged from prison was that he should report to his honor, Conway O. Barton, said county judge twice a month for a sufficient length of time to his honor that your petitioner was refraining from the use of intoxicating liquors. That your petitioner did for several months report as required by the court twice a month in person at the office of said court in the city of Ada, Okl., until along in the summer of 1911, when the said court advised your petitioner that he might report once a month, which he did until the -- day of --, 1911, when he reported, and, after having a conversation with the said court, was advised that he was satisfied with his conduct, and that he need not report further. That your petitioner was led to believe by said court, and did believe that he was discharged from any and all liabilities under said judgment, and for that reason made no attempt to perfect his said appeal. That but for the understanding with said court that he would be and was discharged from said judgment he would have perfected his appeal in said cause. That by reason of the above agreement and arrangement with said court your petitioner lost his right of appeal, and to have his case reviewed by the Criminal Court of Appeals. *** That although your petitioner was by order of the court on the 18th day of January, 1911, released and discharged from his said imprisonment on probation, he was on the 12th day of October, 1911, rearrested and committed to...