Ex parte Snow
| Decision Date | 30 July 1947 |
| Docket Number | A-10854. |
| Citation | 183 P.2d 588,84 Okla.Crim. 423 |
| Parties | Ex parte SNOW. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Original habeas corpus proceeding by Kermit Snow to secure his release from confinement in the State Penitentiary.
Writ denied.
Syllabus by the Court.
1. Under Bill of Rights (Art. 2, § 20, Okla.Const.) an accused has the right to consult with counsel and to be fully advised as to his rights and as to the consequences of his act before entering his plea to the indictment or information.
2. A person prosecuted for a crime may waive the rights guaranteed to him by the Bill of Rights, relating to trial by jury right to be heard by counsel, etc.
3. Whether one accused of crime has waived his right to the assistance of counsel for his defense must depend in each case upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused.
4. Where a long period of time has elapsed since the pronouncement of judgment and sentence, in a criminal case relief is sought from the effects of such judgment and sentence by petition for habeas corpus, proof in support of the allegations of the petitioner must be clear and convincing before the relief will be granted by this court.
5. Where the defendant, an ignorant farm boy 19 years of age, is advised by the district court of his constitutional rights to aid of counsel before arraignment twenty-four hours in which to plead, and the defendant advises the court his parents are negotiating for counsel and he is not ready to plead and the matter is continued for arraignment until the next day, during which time the defendant consults further with his parents and the defendant and his parents conclude because of his obvious guilt the defendant should plead guilty and throw himself on the mercy of the court, and the next day the defendant informs the court that he waives the right to counsel and forty-eight hours before pronouncement of judgment and sentence, such conduct constitutes an effective and intelligent waiver of said rights and the trial court has jurisdiction to proceed with judgment and sentence, and relief cannot be had against said judgment and sentence by way of habeas corpus.
6. The right to relief by habeas corpus on the grounds that at the time judgment and sentence was pronounced against the petitioner he was not represented by counsel and was not advised of his rights may be lost by laches, when the petition for habeas corpus is delayed for a period of time so long that the minds of the trial judge and court attendants become clouded by time and uncertain as to what happened, or due to dislocation of witnesses, the grim hand of death and the loss of records, the rights sought to be asserted have become mere matters of speculation, based upon faulty recollection, or figments of imagination, if not out-right falsifications.
7. Where a petitioner stands committed on an unsatisfied judgment, other than the one upon which he is seeking his release on habeas corpus, the writ of habeas corpus will be denied.
Hubert Hargrave, of Wewoka, for petitioner.
Mac Q. Williamson, Atty. Gen., and Owen J. Watts, Asst. Atty. Gen., for respondent.
This is an original proceeding for writ of habeas corpus, brought by Kermit Snow in which he alleges, in his petition, that he is unlawfully imprisoned and restrained of his liberty in the Oklahoma State Penitentiary at McAlester, Oklahoma, by the warden thereof.
He specifically alleges that the cause thereof is a judgment, sentence and commitment issued by honorable John L. Norman, who was then district judge of Okfuskee County, Okemah, Oklahoma, on the 26th day of August 1932. He contends said judgment, sentence, and commitment are null and void, for the reason that the court lost jurisdiction to pronounce judgment and impose sentence and order him committed to the penitentiary because of the denial of the petitioner's constitutional rights.
The foregoing contention is based upon the following allegations, to wit: That at the time of his arrest he was a minor of the age of nineteen (19) years, an ignorant farm boy with only a third grade education, barely able to read and write, never having been any distance from home, and wholly without experience in court. He further alleges that within an hour after said criminal charge was lodged against him, on August 22, 1932, he was taken before the justice of the peace, without being permitted to talk to an attorney; that he did not know he was waiving a right to counsel, and was not represented by an attorney at said preliminary examination.
That he was thereupon placed in jail where he continued in confinement until August 26 when he was brought before the district court, Judge John L. Norman presiding, and informed that he was charged by information with robbery with firearms; that the court advised him he was entitled to counsel but did not advise him that counsel would be furnished without cost to him. Moreover, he complains that he was not advised of his right to trial by jury, and that the jury had the right to fix the penalty in the event of a finding of guilt. Finally, he says, by reason of the foregoing allegations, the court lost jurisdiction to pronounce judgment and sentence against him.
In support of the petition he attaches thereto a copy of the original complaint, filed in the justice of the peace court which shows the defendants waived their right to a preliminary examination. Moreover, he attaches a copy of the information filed in the district court, and a copy of what he designates the minutes of the court but which in fact are not the court minutes, but a copy of the appearance docket in said case. Also attached to the petition is a transcript of evidence taken before honorable W. A. Lackey, Judge of the district court of Pittsburg County, Oklahoma, to whom said petition was first presented, and after hearing thereon, denied. In this record, the defendant testified in such manner as to support the allegations of his petition. In addition thereto, he gave testimony to the effect that the assistant county attorney, Mr. C. C. Counts, advised him it would be easier for him if he would plead guilty and allegedly stating the he had five (5) other charges against him if he took his case to court. (This is specifically denied by Mr. C. C. Counts in his affidavit, reference to which will be hereinafter made.) He admitted that the court may have told him he was entitled to an attorney and that they read off something to him; that he did not know he had a right to have his sentence delayed for two (2) days. He said that someone was making a record of what was said and done. He further testified that thereafter he was sentenced by the court to twenty-five (25) years in the penitentiary. On cross-examination, he admitted that Governor Marland granted him a parole on March 28, 1938. He admitted that while he was out on parole he was sentenced to six (6) years in the penitentiary from Seminole County for another offense. The fact is, he was convicted of manslaughter for the death of a five-year old girl whom he ran down while driving an automobile in an intoxicated condition. He admitted that the state now has a hold-over placed against him which he must satisfy when the sentence he is now serving for twenty-five (25) years is completed.
The petitioner's mother, Mrs. Minnie Snow, testified that she and her husband went to see their son on Wednesday and the county authorities would not let them see him because it was not 'visiting day' and she returned home. She said she tried to get him a lawyer on Thursday and when she came back later, her boy was gone. She further testified she did not think his father got to see him. (These statements are controverted in the affidavit of Mr. C. C. Counts, reference to which will be hereinafter made.)
To the petition, a rule to show cause was issued. To the rule to show cause the state filed its response, alleging that the petitioner was held under a valid judgment and sentence for the crime of robbery with firearms for which he was sentenced to twenty-five (25) years and further alleging that the court had jurisdiction to enter said judgment and sentence against the petitioner and that the judgment and sentence was unsatisfied. Moreover, alleging that the petition did not state facts sufficient to warrant the granting of the writ. In support thereof, the state submits the affidavit of John L. Norman, trial judge, the pertinent portions of which, given under oath, are as follows, to wit:
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