Ex parte McCollum

• Decision Date: 09 November 1949
• Docket Number: A-11252.
• Citation: 212 P.2d 161,90 Okla.Crim. 153
• Parties: Ex parte McCOLLUM.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

212 P.2d 161

90 Okla.Crim. 153

Ex parte McCOLLUM.

No. A-11252.

Court of Criminal Appeals of Oklahoma

November 9, 1949

Proceeding in the matter of the habeas corpus of Golden McCollum alleging that he was unlawfully restrained by C. P. Burford Warden of the Penitentiary.

The Criminal Court of Appeals, Brett, J., dismissed the petition holding that the petitioner was being held under a valid sentence of imprisonment and that a writ of mandamus to the warden would not lie, and that the constitutional right to a speedy trial had been waived by petitioner.

Syllabus by the Court.

1. When any person is convicted of two or more crimes before sentence has been pronounced upon him for either, the imprisonment to which he is sentenced upon the second or other subsequent conviction, must commence at the termination of the first term of imprisonment to which he shall be adjudged, or at the termination of the second or other subsequent term of imprisonment, as the case may be.

2. Where in a criminal case the penalty is imprisonment the sentence may be satisfied only by the suffering of the actual imprisonment imposed.

3. The Criminal Court of Appeals is a court of special jurisdiction and limited in the exercise of its powers exclusively to criminal cases, and it is undoubtedly true that, except in cases where under the law this court has original jurisdiction, all exercise of power in other cases must be by virtue of its appellate jurisdiction, and the writ of mandamus can be issued only in exercise or in the aid of its appellate authority. Title 20, §§ 40, 41, O.S.A.1941.

4. A mandamus to warden of the penitentiary is the exercise of original jurisdiction and not in aid of appellate jurisdiction.

5. Constitutional right to a speedy trial, Art. 2, § 20, cannot be properly raised by habeas corpus where the petitioner is not in custody under the judgment and sentence attacked, but is in custody on another and valid judgment and sentence.

6. The right to a speedy trial is one that may be waived, and is waived by proceeding to trial without objection.

Golden McCollum, pro se.

Mac Q. Williamson, Atty. Gen., Sam H. Lattimore, Asst. Atty. Gen., for respondent.

BRETT Judge.

This is an original petition seeking relief both by mandamus and habeas corpus brought by Golden McCollum, pro se, alleging that he is being unlawfully restrained by C. P. Burford, Warden of the State Penitentiary. He alleges that the causes of said restraint are four several and consecutive sentences. First, a 20-year sentence from McIntosh County, Oklahoma, for robbery with firearms which sentence was imposed on December 5, 1929. Second, a 20-year sentence for robbery with firearms from Lincoln County imposed on March 4, 1930. Third, a death sentence commuted to life imprisonment for murder of an inmate committed in the penitentiary, which sentence was imposed on October 10, 1934 and commuted by the Governor on November 30, 1935 to life imprisonment. And, fourth, a second life imprisonment sentence for murder of an inmate committed in the penitentiary which murder arose out of the transaction resulting in the imposition of the life sentence hereinbefore referred to. This sentence was imposed upon a plea of guilty on January 18, 1937.

The record discloses that with allowance for lawful credits the petitioner completed service of the first 20-year sentence from McIntosh County on June 15, 1939, and that on said date he was re-committed on the second 20-year sentence from Lincoln County, Oklahoma, service of which he completed on December 25, 1948, and that he was re-committed on the first life imprisonment originally, the death sentence commuted to life imprisonment, service of which he began on the latter date and on which he now stands committed. In other words the record discloses that the warden of the penitentiary has required petitioner to serve the sentences in the order of their imposition. It further appears that while he is now serving the first life sentence, the warden also holds him for service of his second life sentence imposed on January 18, 1937, service of which he has not commenced and will not commence until he is discharged by law from the life sentence he is now serving.

The petitioner's contention is that all lesser judgments and sentences imposed on him prior to the imposition of the death sentence commuted to life imprisonment, became immaterial and void as well as the second life sentence, all of which merged in the first life sentence. We presume his theory being that all of the time that could be imposed upon a convict and all that he would ever be able to serve would be a life sentence, hence the merger, and that the warden should have set the lesser sentences aside, and billed him in on the first life sentence, and should not have placed a hold on him for the second life sentence. He further contends that by reason of being required to finish each of the sentences in the order of their imposition he is being unlawfully detained, and deprived of eligibility for making application for parole on the first life sentence, if service thereof had commenced on November 30, 1935 instead of being required to commence after completion of the two lesser sentences of 20 years. By reason of this contention he says the warden should be ordered and directed to correct his records to reflect the merger of the said lesser sentences of 20 years each and the second life sentence into the first life sentence. He alleges that consideration for parole on a life sentence may be had under the rules of the Pardon and Parole Board after service of 14 years thereon, that by reason of the status of the records at the penitentiary he is deprived of the privilege of making application therefor solely and only by reason of the condition of the penitentiary records as hereinbefore set forth.

The petitioner's contentions are wholly without merit in view of the provisions of Title 21 O.S.A.1941 § 61, as follows 'When any person is convicted of two or more crimes before sentence has been pronounced upon him for either, the imprisonment to which he is sentenced upon the second or other subsequent conviction, must commence at the termination of the first term of imprisonment to which he...