Ex parte Washington

• Decision Date: 18 October 1950
• Docket Number: No. A-10871,A-10871
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
• Parties: Ex parte WASHINGTON.

Page 552

223 P.2d 552

92 Okla.Crim. 337

Ex parte WASHINGTON.

No. A-10871.

Criminal Court of Appeals of Oklahoma.

Oct. 18, 1950.

Syllabus by the Court.

1. There is no limitation of time within which a prosecution for murder may be instituted, 22 O.S.1941 § 151, but a prosecution for manslaughter must be commenced within three years after its commission. 22 O.S.1941 § 152.

2. A limitation of the time within which a prosecution for manslaughter may be instituted, is tolled during the period when the defendant is not an inhabitant of or usually resident within the state. 22 O.S.1941 § 153.

3. A defendant is not entitled to his discharge on the ground that limitation has barred the commencement of a prosecution for manslaughter, merely because information charges the offense to have been committed at a time more than three years prior to the filing of the information, but in order for the accused to be entitled to a discharge the record must affirmatively disclose that during the period of time from the alleged commission of the crime to the commencement of the prosecution, the accused was an inhabitant or usually resident within the state.

4. A prosecution is commenced from the date of the filing of the complaint and the issuance of a warrant by the committing magistrate and not from the date of the filing of the information in the District Court.

5. The writ of habeas corpus cannot be resorted to for the purpose of discharging a petitioner on the ground that the crime alleged in the information was barred by the statute of limitations. Such plea must be presented and tried in the court having jurisdiction to try the offender on the charge for which he is in custody, and, if the decision of such court is thought erroneous, the remedy is by appeal from the final judgment and not by habeas corpus.

6. Prisoner will not be discharged from imprisonment in habeas corpus proceeding on his contention that information charged commission of crime of murder eleven years prior to the filing of information but he was convicted of manslaughter, the punishment for which was barred after three years from the date of the alleged commission of the crime, as such question was one which could only be considered on appeal.

Charles E. Dierker, Oklahoma City, for petitioner.

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

JONES, Presiding Judge.

This is an original action in habeas corpus instituted by the petitioner, Walter Washington, to secure his release from confinement in the State Penitentiary.

In the verified petition it is alleged that the petitioner on the 28th day of August, 1942, was charged by information filed in the District Court of Pottawatomie County, with the crime of murder allegedly committed on August 23, 1931. That on the 23rd day of September, 1942, the petitioner was tried and convicted of the crime of manslaughter in the first degree, and pursuant to the verdict of the jury was sentenced to serve twenty years imprisonment in the State Penitentiary. That thereafter an appeal was prosecuted to the Criminal Court of Appeals and said appeal docketed as Case No. A-10402. That on May 23, 1945, the Criminal Court of Appeals rendered its decision affirming the judgment of conviction, but reducing imprisonment to a term of ten years in the State Penitentiary. Washington v. State, 80 Okl.Cr. 300, 159 P.2d 278.

The petition further alleged that the judgment and sentence is illegal and unauthorized in that the statute of limitations had run upon the offense of which the petitioner was convicted at the time of the filing of the information; and that because said offense was barred by the statute of limitations, the restraint is illegal and petitioner is entitled to his discharge.

After the rule to show cause was issued, the matter was submitted upon the demurrer of the respondent to the petition. Shortly thereafter petitioner applied for and was given a parole. After his release an order was made dismissing the petition for the reason petitioner was no longer in custody. Later petitioner violated the terms of his parole, was rearrested and is again confined in the penitentiary. Upon motion of petitioner the case was reinstated.

We have come to the conclusion that there are several reasons why the petitioner is not entitled to his release from the penitentiary by this proceeding.

In the case of Osborn v. State, 86 Okl.Cr. 259, 194 P.2d 176, 178, this court decided the chief point here involved concerning the statute of limitations. In the syllabus of that case the law is stated as follows:

'There is no limitation of time within which a prosecution for murder may be instituted, 22 O.S.1941 § 151, but a prosecution for manslaughter must be commenced within three years after its commission. 22 O.S.1941 § 152.

'A limitation of the time within which a prosecution for manslaughter may be instituted, is tolled during the period when the defendant is not an inhabitant of or usually resident within the state. 22 O.S.1941 § 153.

'The statute of limitations does not negative a single element of the crime with which a defendant may be charged. It does not put in issue the guilt of the defendant. It therefore is not necessary for the prosecution to prove that the defendant was not an inhabitant or usually resident within the state for a period of time which would have tolled the statute of limitations.

'A defendant is not entitled to his discharge on the ground that limitation has barred the commencement of a prosecution for manslaughter, merely because information charges the offense to have been committed at a time more than three years prior to the filing of the information, but in order for the accused to be entitled to a discharge the record must affirmatively disclose that during the period of time from the alleged commission of the crime to the commencement of the prosecution, the accused was an inhabitant or usually resident within the state.'

In the body of the opinion it is said:

'It is provided by statute:

"If when the offense is committed the defendant be out of the State, the prosecution may be commenced within the term herein limited after his coming within the State, and no time during which the defendant is not an inhabitant of or usually resident within the State, is part of the limitation. R.L.1910, § 5626.' 22 O.S.1941 § 153.

'In construing and applying this section of the statute, this Court has consistently held that the burden is not upon the State to show by the evidence that the defendant was not an inhabitant or usually resident within the State for a period of time which would toll the statute of limitations. Coleman v. Territory, 5 Okl. 201, 47 P. 1079; Rea v. State, 3 Okl.Cr. 281, 105 P. 386, 106 P. 982; Davenport v. State, 20 Okl.Cr. 253, 202 P. 18; Crain v. State, 70 Okl.Cr. 45, 104 P.2d 450.

'In Coleman v. Territory, supra, Justice Tarsney of the Supreme Court of Oklahoma Territory cited and discussed all of the leading American cases and text books on this subject of limitation, and came to the conclusion as stated in his opinion:

"In this case the question is clearly presented whether, when the prosecution has established the commission of the offense by the accused, it was also its duty to establish by evidence, beyond a reasonable doubt, its right to have the accused punished for such offense, by facts showing that he was not entitled to the benefits of the statute of limitation, or was it the duty of the defendant to establish by facts, to the satisfaction of the jury, his right to exemption from punishment by virtue of that statute? When the defense consists, not in confession and avoidance, but in the traverse of some essential fact relied on by the prosecution, and where such fact is an essential element of the offense, the burden of proof is unquestionably upon the prosecution, and it must establish such fact beyond a reasonable doubt. In determining upon which party lies the burden of proof and the degree of proof, we think a clear distinction may be drawn between cases where the defense traverses the material elements of the crime, and those which are exculpatory, or in the nature of confession and avoidance, and keeping clearly in mind this distinction will aid materially in construing apparently conflicting authorities. * * * The defense of the statute of limitations traverses no element of the crime charged. It is essentially an extrinsic defense. It does not put in issue either the guilt of the defendant, or the existence of any of the essential elements constituting his guilt of the offense charged. He simply asserts that by virtue of an extrinsic condition, not relating to the commission of the offense, but recognizing its commission, namely, a statute of repose or limitation, he is not now subject to punishment for the crime which he admits having committed. We can see no reason why the rule relating to the defense of license, authorization by the state, autrefois acquit, autrefois convict, pardon, provocation, or compulsion should not be the rule as to this defense. In fact, we think the rule applies with more reason and justice to this defense than to the others. It is not inequitable, oppressive, or substantially prejudicial to the safeguards which should surround the defense of one accused of crime, that if his defense does not deny the commission of the acts charged, or traverse any of the material elements of the offense, but is based upon facts wholly extrinsic, and peculiarly within his knowledge, and more readily susceptible to proof by him than by the prosecution, he should be held to establish such defense to the...