Poston, Application of, A-12135

• Decision Date: 16 March 1955
• Docket Number: No. A-12135,A-12135
• Citation: 281 P.2d 776
• Parties: In re Application of Richard Dean POSTON, for Writ of Habeas Corpus.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 776

281 P.2d 776

In re Application of Richard Dean POSTON, for Writ of Habeas Corpus.

No. A-12135.

Criminal Court of Appeals of Oklahoma.

March 16, 1955.

Syllabus by the Court

1. In order to comply with the provisions of Section 124 of Title 22, O.S.1951, so as to fix the venue for a charge of rape in either of two counties, where the facts would justify, it must be charged that the sexual act commenced in one county continued on into another county.

2. Where as a prelude to the actual sexual act, which was alleged to have been commenced and completed in Wagoner County, it is set out in the information that in effort to overcome the victim's resistance, the rapist assaulted, beat and threatened her in Tulsa County, such allegations were insufficient to fix venue in Tulsa County under Tit. 22 O.S.1951 § 124.

3. The right guaranteed by the State Constitution to trial in the county where the offense was committed relates to the venue rather than jurisdiction, and may be waived by failure to make the objection at or before trial, preventing raising of the question on appeal or where release is sought by way of writ of habeas corpus.

4. The type of jurisdiction which a party cannot confer by consenting that the court shall exercise it is generally jurisdiction over the subject matter which is not conferred upon the court by Constitution or a valid statute.

5. All questions which the parties can waive are to be deemed to have been waived, if not presented in an appropriate manner in the trial court.

6. A defendant in a criminal case may waive any right, not inalienable, given him by statute or the Constitution, which can be relinquished without affecting the rights of others, and without detriment to the community at large; and such waiver may be made either by express agreement or by conduct, or by a failure to insist upon the right in seasonable time.

7. Where, under circumstances set out in paragraph two, the alleged rapist charged by information filed in Tulsa County was, prior to the filing of such information, accorded a preliminary hearing, and he signed a written confession, and being represented by counsel, entered a plea of guilty in the district court, where the sentence could have been death, but was for the lesser penalty of thirty years, and neither the accused nor his counsel raised the question of venue or the jurisdiction of the court over the case until after the judgment and sentence and more than three years had elapsed after the date of the crime charged and after the running of the statute of limitations against further prosecution in case of discharge, the objection now interposed in the Criminal Court of Appeals comes too late, and petitioner is held to have waived the question of venue.

Lassiter, Linker & Mason, Tulsa, for petitioner.

Mac Q. Williamson, Atty. Gen., Sam H. Lattimore, Owen J. Watts, Asst. Attys. Gen., for respondent.

POWELL, Judge.

Petitioner, Richard Dean Poston, seeks his release from the Oklahoma State Penitentiary, where he is serving a sentenc of 30 years on account of a judgment entered by the district court of Tulsa County on the 7th day of December, 1951 by reason of the petitioner entering a plea of guilty in case No. 14910 in that court, to a charge of rape in the first degree allegedly committed on the 7th day of September, 1951.

Petitioner heretofore and on March 23, 1954 in case No. A-12074 in this court, sought the relief at this time applied for, but a hearing on that petition was continued a number of times at the request of counsel for the defendant, and finally on June 9, 1954 at the request of counsel for petitioner, the proceedings were terminated by dismissal. The present proceedings were commenced on October 19, 1954.

The basis for relief as stated by counsel is:

'That said petitioner is being held illegally and unlawfully, and that such restraint is unauthorized, for the reason that the said court in Tulsa County, Oklahoma, did not have jurisdiction of the person of this petitioner, or the subject matter, nor did any integral part of said crime happen within the boundaries of Tulsa, Oklahoma, giving the court jurisdiction, and that the judge of said court was without authority to restrain and incarcerate this petitioner in the State Penitentiary at McAlester, Oklahoma.'

If petitioner is correct in his contention that the sentencing court did not have or obtain jurisdiction of the defendant or the subject matter, then he would be entitled to his discharge, and by reason of more than three years having elapsed at this time since the date the offense was alleged to have been committed, further prosecution would be barred by the applicable statute of limitations. Tit. 22 O.S.1951 § 152.

Counsel in brief in support of the petition asserts that the information shows on its face that the crime charged was alleged to have been committed in Wagoner County, and that it was never contended otherwise, ahd hence the court was without jurisdiction to render the judgment entered. It is further asserted: '* * * the crime of rape with force and violence is that type of an offense, particularly under the evidence in this case, that could not have occurred in both counties to give either county jurisdiction.'

It is stated that defendant was represented by the public defender of Tulsa County, and entered a plea of guilty. It is stated that the evidence of the prosecutrix at the preliminary showed that the actual rape took place in Wagoner County. Counsel for petitioner then delineates the following in the form of a summary of the testimony of the prosecutrix at the preliminary hearing:

'Geneva Daugherty lived at 215 S. Evanston Street, Tulsa, Oklahoma. She was a woman between 40 and 44 years of age; that she was the night janitress in the Mayo Building in Tulsa, Oklahoma; that on the night in question she quit work at 6 minutes until 12:00 o'clock. She caught a city bus and alighted therefrom at Admiral and College Streets, walked a couple of blocks to First and Evanston Streets, where the defendant in an automobile accosted her. He put his hand over her mouth and told her not to scream. She and the defendant began fighting and the defendant struck her. When she came to they were traveling in the car on some street which she did not know but she saw lights coming in the distance. She then grabbed the steering wheel and tried to wreck the car. She then threw out her purse and tried to jump from the car. At this point the prosecuting witness became unconscious again after the defendant struck her. She then came to again, but every time she came to the defendant would beat her and she would pass out again. That they were driving out on the highway and the last time she came to the car was parked on the highway, she knew not where; that the defendant there got up over her and was right on top of her. He asked her to kiss him, which she refused. The defendant started beating her and she passed out again; that when she came to again she was in a ditch and it was very dark. She made it to a farm house and was later brought home. The facts further are that the defendant was 34 years of age, was employed by the Bell Telephone Company at Tulsa, and that he had never before been convicted or charged with any felony or any serious offense. He was arrested at his home three or four days after the offense was committed. He was carried in a Tulsa police car into Wagoner county and there pointed out the scene of the offense to the police officers.'

The State in connection with a response has filed an exhibit consisting of a copy of a confession made by the defendant wherein he confessed to forcibly placing the prosecutrix in his car, beating her and leaving her in a ditch. The medical record shows that it was necessary to take stitches in her lips, and that her skull was fractured from the beatings, and a vaginal examination disclosed numerous 'motile sperm'. It is set out that the point shown the offiders where the rape actually took place was across the Tulsa County line in Wagoner County.

The pertinent portion of the information in the case charged:

'* * * that Richard Dean Poston, on the 7th day of September, A. D. 1951, in Tulsa County, State of Oklahoma, and within the jurisdiction of this Court, did unlawfully, wilfully, forcibly and feloniously strike, beat and seize Geneva Daugherty, a female person, not the wife of him, the said Richard Dean Poston, and after crossing the county line of Tulsa County into Wagoner County, Oklahoma, did carnally know and have sexual intercourse with the said Geneva Daugherty, and that the said defendant by means of force and violence and fear, did overcome all resistance on the part of her the said Geneva Daugherty, and that Geneva Daugherty resisted the said Richard Dean Poston, but her resistance was overcome by force and violence, contrary to the form of the Statutes * * *.'

It is apparent, as contended by counsel for the petitioner, that the prosecution was carried on in Tulsa County by the Tulsa County Attorney in the belief that the same was authorized by Tit. 22 O.S.1951, § 124, reading as follows:

'When a public offense is committed, partly in one county and partly in another county, or the acts or effects thereof, constituting or requisite to the offense, occur in two or more counties, the jurisdiction is in either county.'

If it was proper that the prosecution be instituted under such statute, we would in a habeas corpus proceeding assume that the court had before it evidence or a stipulation that would meet the requirements of the statute. Only where the case would reach this court on appeal and where it was properly incorporated in the casemade would we consider the evidence produced at the preliminary hearing making up the proof supporting the charge. In re McNaught, 1 Okl.Cr. 528, 99 P. 241; Ex parte Dunn, 33 Okl.Cr. 190, 242 P. 574; Ex parte Jackson, 45 Okl.Cr. 448, 287 P. 786; Thornton v. Waters, ...