Ex parte Scharnhaus

• Decision Date: 27 October 1948
• Docket Number: A-11107.
• Citation: 198 P.2d 1009,87 Okla.Crim. 433
• Parties: Ex parte SCHARNHAUS.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

198 P.2d 1009

87 Okla.Crim. 433

Ex parte SCHARNHAUS.

No. A-11107.

Court of Criminal Appeals of Oklahoma

Oct. 27, 1948

Original proceeding in habeas corpus by Ed Scharnhaus to obtain release from confinement in state penitentiary.

Writ denied.

Syllabus by the Court.

1. One imprisoned in the State Penitentiary will not be released on habeas corpus unless the judgment and sentence under which he is serving is void, or the court did not have jurisdiction to render the same.

2. Power of the Criminal Court of Appeals to modify a sentence is limited to appealed cases, and cannot be exercised in an original habeas corpus proceeding. Const. Art. 6, § 10; 22 O.S.1941 § 1056.

Ed Scharnhaus, petitioner, pro se.

Mac Q Williamson, Atty. Gen., and Lewis A. Wallace, Asst. Atty Gen., for respondent.

BAREFOOT Presiding Judge.

Petitioner Ed Scharnhaus, has filed petition for writ of habeas corpus alleging that he is illegally detained and imprisoned in the Oklahoma State Penitentiary at McAlester.

As grounds for the issuance of the writ, it is alleged:

'That the evidence upon which the said commitment was based was in substance as follows, that is to say: your petitioner was arrested in the city of Tulsa by the officials of the Police Department of said City on March 14, 1946, upon a charge of rape and investigation. He was turned over to the Sheriff's Office of Tulsa County, Oklahoma, on a charge of first degree rape on June of 1947. However, it is particularly vital and important that it be pointed out to this Honorable Court that your petitioner was released and freed from the charge in the year 1946 with no conditions whatever imposed upon him. Your petitioner was not out on bond. Further, your petitioner was not tried and a suspended sentence imposed. The matter did not proceed beyond the stages of a preliminary hearing and arraignment in the said year of 1946. It was simply and unqualifiedly dropped. Then, fifteen months afterward the officials of the said County of Tulsa saw fit to reinstate the charge, apprehending your petitioner and bringing him to trial.

'And your petitioner further shows that by virtue of the foregoing he is illegally detained and imprisoned upon the following premises, to-wit:

'First, your petitioner was subjected to double jeopardy, being twice held and informed against on the identically same charge, which was not amended or changed in any respect. Secondly, your petitioner hereby avers that the District Court of Tulsa County lost and was totally without jurisdiction in the said case, to-wit: Case No. 12,921, heard in said Court, and upon which a judgment and sentence of fifteen (15) years was rendered for the crime of first degree rape, on the 1st day of October, 1947, by virtue of the failure of the officials of the said County of Tulsa to extend your petitioner a constitutionally guaranteed speedy trial and hearing.'

And in the concluding paragraph, petitioner states:

'And your petitioner respectfully requests that if this Honorable Court does not see fit to issue an order for his outright release that the Court will order that your petitioner's time be reduced to time served.'

A response to the rule to show cause was filed by the Attorney General, denying the allegations of the petition, and...