Ex parte Wilkins

• Decision Date: 06 June 1911
• Citation: 115 P. 1118,7 Okla.Crim. 422,1911 OK CR 545
• Parties: Ex parte WILKINS.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

115 P. 1118

7 Okla.Crim. 422, 1911 OK CR 545

Ex parte WILKINS.

Court of Criminal Appeals of Oklahoma

June 6, 1911

Syllabus by the Court.

Section 10 of the Bill of Rights provides: "The privilege of the writ of habeas corpus shall never be suspended by the authorities of this state." Held, that the writ of habeas corpus is a writ of right, and cannot be abrogated or its efficiency impaired by statute, and the cases within the relief afforded by the writ at common law cannot be placed beyond its reach under the constitutional guaranty.

The review of a judgment of conviction and imprisonment by writ of habeas corpus is limited to the questions: Had the court which rendered the judgment jurisdiction of the subject-martter and of the person convicted? And did the court in the course of the proceedings which resulted in the judgment lose jurisdiction to render a valid judgment and sentence?

Habeas corpus does not lie to correct mere irregularity of procedure, where there is jurisdiction. There must be illegality or irregularity sufficient to render the proceedings void.

Irregularities in the impaneling of a trial jury do not affect the jurisdiction of the court so as to justify release by habeas corpus of a person so convicted.

A court of competent jurisdiction is one having power and authority of law at the time of acting to do the particular act.

A judgment and sentence rendered in a superior court upon a verdict returned by a jury of six men on a trial for a misdemeanor is not void for illegality.

Application of George Wilkins for writ of habeas corpus. Denied.

A judgment and sentence rendered in a superior court on a verdict returned by a jury of six men on a trial for a misdemeanor is not void for illegality, being authorized by Snyder's Comp.Laws 1909, § 1970.

The petitioner, George Wilkins, on January 24, 1911, filed in this court a verified petition, wherein he avers that he is unlawfully restrained of his liberty by one J. L. Wisener sheriff of Muskogee county, at and in the common jail of said county. The petition further avers: "That the aforesaid restraint and imprisonment of your petitioner is illegal, and that the aforesaid pretended conviction in said superior court was before a jury of six persons, impaneled in said superior court for the trial of your petitioner: that your petitioner did not at the time, nor has he ever, agreed to a trial in said court by said jury of six persons, nor has your petitioner in anything waived his right to a trial by a jury as guaranteed to him by the Constitution and laws of this state. Wherefore, your petitioner prays that the writ of habeas corpus may issue out of this honorable court, directed to the said John L. Wisener, sheriff as aforesaid, commanding him to have the body of your petitioner before this honorable court at a time and place to be by the court fixed, together with the cause of the detention of your petitioner; that your petitioner may be ordered discharged from the custody of said sheriff; that pending the hearing of this petition your petitioner be admitted to bail in a sum to be fixed by this honorable court; and for all other, further, and different relief to which he may be entitled in the premises." A writ of habeas corpus issued returnable before the court, and petitioner was admitted to bail pending the determination of the cause. In answer respondent made return that said petitioner is held in custody by virtue of an order of commitment duly issued out of the superior court, and attaches a copy of said commitment to his return so made showing that on March 5, 1910, the petitioner was sentenced to confinement in the county jail for 60 days, and for the further period of time until a fine of $200 and costs be satisfied at the rate of $2 per day if the same was not paid.

There was also filed a stipulation as to the record that the following is a true and correct copy of the journal entry in the case of the State of Oklahoma v. George Wilkins No. 163, Criminal, to wit: "Now on this 23d day of February, 1910, being a day of the regular January term of the superior court of Muskogee county, Oklahoma, this cause came on for hearing in its regular order, the state appearing by W. J. Crump, county attorney. The defendant filed a motion to quash the information herein, and the court, after having heard said motion, overruled the same, to which the defendant duly excepted. The defendant filed a demurrer to the information herein, and, after having heard said demurrer the same was by the court overruled, to which the defendant duly excepted. The defendant waived arraignment and entered a plea of not guilty, whereupon a jury of six good men of the regular panel were selected, impaneled, and sworn to try the cause. After having heard all the evidence, the instructions of the court, and argument of counsel, the jury retired in charge of a sworn bailiff of this court to consider of their verdict, and afterwards returned into court with the following verdict, to wit: 'We, the jury in the above-entitled action, duly impaneled and sworn, upon our oaths, find the defendant guilty as charged in the information herein.' It is also stipulated and agreed between the parties herein named that case No. 163, Criminal, is the case in which judgment under which said George Wilkins was imprisoned at the time he sued out the writ of habeas corpus herein. W. E. Disney, County Attorney, Muskogee County. Kistler & Haskell, for Petitioner."

Kistler & Haskell, for petitioner.

DOYLE, J. (after stating the facts as above).

Upon the record before us it cannot be doubled or denied that the superior court of Muskogee county had jurisdiction of the person and the subject-matter.

The only alleged defect in the proceedings is the impaneling of a jury of only six men in the trial of the case, which was done without objection on the part of the defendant. It only remains to consider whether this alleged irregularity rendered the proceedings void.

It is now contended on behalf of petitioner that his conviction was illegal and void, and the court had no jurisdiction to proceed thereon to judgment and sentence, because the same was rendered on the verdict of a so-called "jury" of six men without an express waiver by the defendant of his constitutional right to trial by a jury of twelve men entered of record, and the further contention that, even with the consent of the defendant, a jury of six men in a superior court could not find a valid verdict in any criminal case. If the defendant could not effectually waive his constitutional right to trial by a jury of twelve and consent to a trial by a jury of six men, the judgment and sentence would in that event be illegal and void. Hence upon the petitioner's theory of the case, habeas corpus is the proper remedy notwithstanding the provision of the statute (section 6207, Snyder's Sts. 1909), that: "No court or judge shall inquire into the legality of any judgment or process, whereby the party is in custody, or discharge him when the term of commitment has not expired in either of the cases following: *** 2d. Upon any process issued on any final judgment of a court of competent jurisdiction. ***"

Section 10 of the Bill of Rights provides: "The privilege of the writ of habeas corpus shall never be suspended by the authorities of this state." And the general statute is (section 6196, Snyder's Sts.): "Every person restrained of his liberty, under any pretense whatever, may prosecute a writ of habeas corpus to inquire into the cause of the restraint, and shall be delivered therefrom when illegal." In the case of Ex parte Mingle, 2 Okl. Cr. 708, 104 P. 68, it was held that: "The writ of habeas corpus is a writ of right, and cannot be abrogated or its efficiency impaired by statute, and the cases within the relief afforded by the writ at common law cannot be placed beyond its reach under the constitutional guaranty."

While it is well settled that mere irregularity in proceedings resulting in the imprisonment, however flagrant, is not sufficient ground to discharge on habeas corpus, yet, if the petitioner be imprisoned under a judgment of a court which had no jurisdiction to render the judgment complained of such want of jurisdiction may be inquired into on habeas corpus, and, if found to exist, is ground for a discharge of the petitioner. Ex parte Johnson, 1 Okl. Cr. 414, 98 P. 461; In re McNaught, 1 Okl. Cr. 528, 99 P. 241: Ex parte Gudenoge, 2 Okl. Cr. 110, 100...