Matthews v. Raines, A-12932

• Decision Date: 07 November 1960
• Docket Number: No. A-12932,A-12932
• Citation: 356 P.2d 783
• Parties: Dero MATTHEWS, Petitioner, v. Robert R. RAINES, Warden, Oklahoma State Penitentiary, Respondent.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 783

356 P.2d 783

Dero MATTHEWS, Petitioner, v. Robert R. RAINES, Warden, Oklahoma State Penitentiary, Respondent.

No. A-12932.

Court of Criminal Appeals of Oklahoma.

Nov. 7, 1960.

Syllabus by the Court

1. Errors or irregularities in the course of the proceedings at or anterior to the trial, which, if presented to an appellate court by way of appeal, must necessarily result in either the reversal of the case or remanding to the trial court for the imposition of a correct sentence, are not sufficient for that reason as grounds for the release of a prisoner upon application for a writ of habeas corpus.

2. Court of Criminal Appeals will not permit an accused to appeal his judgment of conviction and speculate upon his chances of securing a reversal and then, after the judgment of conviction is affirmed, come into court in a habeas corpus proceeding and raise the same or other grounds which might entitle the petitioner to a new trial or his release from custody, unless the question raised is such as to show that the judgment is wholly void.

3. An attempt to commit a felony, where no special provision is made by law for the punishment for such attempt, is punishable as provided by 21 O.S.1951 § 42.

4. Rape in the first degree is punishable by imprisonment in the penitentiary for not less than fifteen years. 21 O.S.1951 § 1115. One convicted of an attempt to commit rape in the first degree is punishable by imprisonment in the State Penitentiary for any term not exceeding one-half of the longest term of imprisonment fixed for a conviction of rape in the first degree. 21 O.S.1951 § 42, subd. 1. Under these provisions of the law one convicted of an attempt to commit rape in the first degree may be sentenced to a term of 37 years in the state penitentiary.

5. Where the court has jurisdiction of the person and the offense, the imposition of a sentence in excess of what the law permits does not render the legal or authorized portion of the sentence void, but only leaves such portion of the sentence in excess open to question of attack, and that may not be done in a writ of habeas corpus action until the authorized portion of the sentence has been served.

Original proceeding in which Dero Matthews seeks his release from confinement in the State Penitentiary by habeas corpus. Writ denied.

Dero Matthews, petitioner, pro se.

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

POWELL, Presiding Judge.

Dero Matthews seeks release from the State Penitentiary at McAlester by way of writ of habeas corpus. Prisoner is confined by reason of a judgment and sentence of the district court of Tulsa County, case No. 13,249, dated October 5, 1948, based on the verdict of a jury wherein petitioner was found guilty of the crime of attempted first degree rape, second offense, and punishment fixed at a term of 60 years in the State Penitentiary.

Petitioner says that he is entitled to release in that the trial court imposed an excessive sentence, that is, a sentence beyond that authorized by the pertinent statutes. That the court had no jurisdiction to impose such a sentence and for such reason the judgment is void and habeas corpus is the proper route to reach and resolve the question.

We note that this petitioner appealed to this Court from the conviction mentioned, and that the point now raised was not raised in trial court by exceptions to the instruction given by the court to the jury and no different instructions were requested, in the motion for new trial, or petition in error filed in this Court. See Matthews v. State, 91 Okl.Cr. 285, 218 P.2d 393. The sole complaint there was as to the sufficiency of the evidence. The evidence would have supported a charge of first degree rape on the ten-year-old child involved, in that there was penetration, even though not past her hymen. 21 O.S.1951 § 1113, and cases cited thereunder. But the State was bound by the information filed.

The first question concerns our authority to grant the writ prayed for, assuming that the sentence in question is excessive. If the proposition now advanced had been raised in the appeal, this Court would have been compelled to notice and treat the issue, and if there found valid, would have been anxious to, and would have granted whatever relief might have been indicated.

It must be noted at this point that this Court has consistently held that where the defendant is represented by counsel, is tried and convicted, perfects his appeal to this Court had the judgment and sentence of the lower court is affirmed, it will not later entertain a petition for writ of habeas corpus on the same ground or grounds existing at the time of the appeal or any other grounds which should have been called to the attention of this Court on appeal. Ex parte Collins, 83 Okl.Cr. 296, 176 P.2d 507, and cases cited. Even so, if the judgment was absolutely void we might be called upon for an exception to such rule.

The writ of habeas corpus does not deal with errors or irregularities which render proceedings voidable merely, but such only as render them absolutely void. Ex parte Lyde, 17 Okl.Cr. 618, 191 P. 606. To be entitled to be discharged, then, the judgment must be void. Ex parte Barnette, 29 Okl.Cr. 80, 232 P. 456.

The question is, then, was the sentence of 60 years imposed for the crime of attempted first-degree rape, second offense, beyond that authorized by law, and if it was excessive, would such fact make the judgment and sentence void?

This proposition has been treated in Volume 25, American Jurisprudence, page 188, § 59, Habeas Corpus, where it is said:

'Contrary to some early decisions, it is now well settled that in the case of a sentence which was merely excessive, if the court which imposed it had jurisdiction of the person and subject matter, such sentence was not void ab initio...