Ex parte Moutaw, A-11525

• Decision Date: 10 October 1951
• Docket Number: No. A-11525,A-11525
• Citation: 236 P.2d 509,94 Okla.Crim. 377
• Parties: Ex parte MOUTAW.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 509

236 P.2d 509

94 Okla.Crim. 377

Ex parte MOUTAW.

No. A-11525.

Criminal Court of Appeals of Oklahoma.

Oct. 10, 1951.

Syllabus by the Court.

1. A defendant in a criminal case may waive any right, not inalienable, given him by the statute or the Constitution, which can be relinquished without affecting the rights of others, and without detriment to the community at large; and such waiver may be made either by express agreement, or by conduct, or by a failure to insist upon the right in seasonable time.

2. Among the rights that may be waived is the right to a trial by jury, and also the statutory right of insisting that at least two days shall elapse between the rendering of a verdict and the rendition of a judgment, or between the acceptance of a plea of guilty to a charge and the passing of judgment and sentence after such plea.

3. Record examined and found to refute petitioner's contention that his rights under Bill of Rights, Art. II, § 20, Const. of Oklahoma, were ignored and violated and that his plea of guilty was involuntary.

Tom Smith, Walter Billingsley, Wewoka, for petitioner.

Mac Q. Williamson, Atty. Gen., Owen J. Watts, Asst. Atty. Gen., for respondent.

POWELL, Judge.

Floyd F. Moutaw, who is confined in the State Penitentiary at McAlester, has filed in this court his petition for writ of habeas corpus, seeking his release on the ground that the judgment under which he is imprisoned is void. He states that his application for a writ of habeas corpus in the district court of Pittsburg County has been denied.

Petitioner alleges that he was arrested on October 20, 1950, and charged by preliminary information in the county court of Cimarron County with the crime of assault with intent to kill; that he does not know whether he had a preliminary or not, but that a purported preliminary was had on October 25, 1950, and he was bound over to the district court; that he had never been arrested before, was but twenty-four years of age, did not have an attorney; and that on October 30, 1950 he was brought before F. Hiner Dale, district judge of Cimarron County, and requested to plead; that he entered a plea of guilty and was immediately sentenced to four years in the State Penitentiary at McAlester. It is alleged that the day following his sentence his family obtained counsel for him, but the court refused to set aside the judgment and sentence.

Petitioner alleges that his rights under the Bill of Rights, Art. II, § 20, Const. of Okla., were ignored and violated in that his plea of guilty was not voluntary, and was made before he was advised of his constitutional rights, and that the district court did not have jurisdiction to pass judgment and sentence on petitioner's plea of guilty by reason of such fact, and by reason of the further fact that the district court failed and refused to wait two days before passing judgment and sentence as required by statute.

Through a long line of decisions this court has held that a defendant in a criminal case may waive any right, not inalienable, given him by the statute or constitution which can be relinquished without affecting the rights of others, and without detriment to the community at large, and such waiver may be made either by express agreement or by conduct, or by a failure to insist upon the right in seasonable time. Hill v. State, 9 Okl.Cr. 629, 132 P. 950; Adams v. State, 21 Okl.Cr. 448, 209 P. 189; Terrell v. State, 16 Okl.Cr. 287, 177 P. 125; Ex parte Gilbert, 71 Okl.Cr. 268, 111 P.2d 205; Norman v. State, 81 Okl.Cr. 78, 160 P.2d 739.

Respondent, warden of the State Penitentiary, has filed a response to the petition herein, attaching photostatic copy of the commitment under which said prisoner is held, which is in regular and legal form. Also there has been filed a copy of the minutes of the district court of Cimarron County for October 30, 1950, the day of the sentencing of defendant, affidavits by the county attorney of Cimarrow County, Hiram A. Butler, and of the trial judge, F. Hiner Dale, and attached to the affidavit of the trial judge was a written confession of the petitioner, confessing to the crime with which charged.

Our record further shows that the case was assigned for oral argument on our docket for January 24, 1951, and was stricken on said date and reset for February 28, 1951; that the Attorney General filed a response on February 26, 1951, and the case was submitted on February 28, 1951, upon the petition and response; and that on March 1, 1951, the Attorney General filed herein a transcript containing the information, judgment and sentence, minutes of the county and district court appearance dockets.

This is not an appeal from the judgment rendered, of course. The office of the writ of habeas corpus is not to determine the guilt or innocence of the prisoner, and the only issue is whether or not the prisoner is restrained of his liberty by due process of law.

Specifically in the within case, the only question for consideration presented by the petition is whether ...