Ex parte Millsap

• Decision Date: 26 September 1911
• Citation: 118 P. 135,29 Okla. 472,1911 OK 304
• Parties: Ex parte MILLSAP.
• Court: Oklahoma Supreme Court

118 P. 135

29 Okla. 472, 1911 OK 304

Ex parte MILLSAP.

Supreme Court of Oklahoma

September 26, 1911

Syllabus by the Court.

In habeas corpus, if the process is valid on its face, it will be deemed prima facie legal, and the prisoner assumes the burden of impeaching its validity by showing a want of jurisdiction.

To constitute a larceny of an estray, animus furandi must exist at the time defendant first took possession of the animal.

The plea of not guilty puts in issue the averment in the indictment of the place where the larceny was committed, also the animus furandi, and imposes on the prosecution the necessity of proving the locus delicti and the animus furandi.

Where on a plea of not guilty to an indictment for larceny, the jury found the defendant guilty as charged in the indictment and, in effect, that the prisoner committed the offense within the jurisdiction of the court, as alleged, he cannot impeach that finding on habeas corpus by showing that the place where the offense was committed is without jurisdiction of the court.

Application of Rob Millsap for writ of habeas corpus. Writ discharged and prisoner remanded.

TURNER C.J.

On June 27th, pursuant to the prayer of his petition, one of the justices of this court ordered that a writ of habeas corpus issue, directed to the sheriff of McClain county, by whom petitioner alleged himself to be illegally restrained of his liberty. He further alleged the cause thereof to be a certain judgment of conviction on an indictment for larceny and sentence thereon of the district court of said county that he be confined in the state penitentiary for one year, which said judgment he says is void for want of jurisdiction, and from which, in due time, he prosecuted, by petition in error and case-made, his appeal to the Criminal Court of Appeals which had dismissed the same. The record in said cause is made an exhibit to his petition.

The power of this court to issue this writ and examine the proceedings of the trial court, so far as may be necessary to ascertain whether that court exceeded its authority, is no longer an open question. Quoting approvingly from Ex parte Harlan, 1 Okl. 48, 27 P. 920, the court, in Re Patswald, 5 Okl. 789, 50 P. 139 said: "The law is well settled that in a case like the present, in which the petitioner is in execution upon a conviction, the writ of habeas corpus ought not to be awarded, if the trial court had jurisdiction of the person and of the crime charged, and did no act beyond the powers conferred upon it. And the proceedings of the trial court will be examined, so far as necessary to determine the question of jurisdiction. And, if it appears that the court transcended its powers, the writ will be granted, and the prisoner discharged, even after judgment. But, if the trial court had jurisdiction and power to convict and sentence, the writ cannot issue to correct mere errors." Hence, as stated, in Ex parte Lange, 18 Wall. 163, 21 L.Ed. 872: "Disclaiming any assertion of a general power of review over the judgments of the inferior courts in criminal cases, by the use of the writ of habeas corpus, or otherwise, we proceed to examine the case as disclosed by the record of the circuit court and the return of the marshal, in whose custody the prisoner is found, to ascertain whether it shows that the court below had any power to render the judgment by which the prisoner is held." The process seems fair on its face. Where this is the case, the rule is stated in the Patswald Case, supra, to be: "If the process is valid on its face, it will be deemed prima facie legal, and the prisoner must assume the burden of impeaching its validity by showing a want of jurisdiction."

From the proceedings of the trial court and the return to the writ, it appears that the September, 1908, term of the district court of McClain county petitioner was indicted for the larceny of a cow "in said county of McClain, state of Oklahoma, *** on or about the 10th day of September, 1908, and anterior to the presentment hereof *** of the value of $15." There was a plea of not guilty. Said indictment was based upon Snyder's Stats. of Okl. § 2606, which reads: "That if any person shall steal any stallion, mare, colt, gelding, ridgeling, or any ass, genet, or mule, or any bull, cow, calf, steer, or stag, he shall be guilty of a felony and on conviction thereof shall be punished by confinement in the state penitentiary for a term (of) not less than one or more than ten years."

In his opening statement, the county attorney stated that at the time of the taking the animal in question was an estray, and such it was conceded, and the undisputed testimony shows it to be. This being the state of the record, petitioner contends that the court was without authority of law to render the judgment of conviction, because, he says, an estray was not a subject of larceny. Not so. To constitute larceny of an estray, afterwards converted, as was this one, by defendant to his own use, by disposing of it to a butcher in McClain county, after statehood, as he admits, the felonious intent to misappropriate must exist at the time he took possession. Where such intent or animus furandi exists he is guilty of larceny. Starck v. State, 63 Ind. 285, 30 Am. Rep. 214; Boer v. State (Tex. Cr. App.) 28 S.W. 951; Burger v. State, 83 Ala. 36, 3 So. 319; Gosler v. State (Tex. Cr. App.) 56 S.W. 51; Adolphus Cameron v. State, 44 Tex. 652; Matt. Debbs v. State, 43 Tex. 650; Wash Beatty v. State, 61 Miss. 18; State v. White, 126 Mo. 591, 29 S.W. 591; Michael Land v. State, 40 Neb. 312, 58 N.W. 962; J. B. Pitts v. State, 3 Tex. App. 210; Fred McCarty v. State, 36 Tex. Cr. R. 135, 35 S.W. 994; State v. Casteel, 53 Mo. 124; State v. Martin, 28 Mo. 530. The existence of this intent the jury found as a fact, under proper charge of the court, and in effect that the larceny was committed at the time petitioner first took the animal into his possession. This finding is conclusive on us, and cannot be reviewed in this proceeding. Brown on Juris. § 110, says: "The three essential elements necessary to render conviction...