State ex rel. Waters v. Lackey

• Decision Date: 18 May 1953
• Docket Number: No. A-11907,A-11907
• Citation: 257 P.2d 849,97 Okla.Crim. 41
• Parties: STATE ex rel. WATERS, Warden, v. LACKEY, Judge.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 849

257 P.2d 849

97 Okla.Crim. 41

STATE ex rel. WATERS, Warden, v. LACKEY, Judge.

No. A-11907.

Criminal Court of Appeals of Oklahoma.

May 18, 1953.

Syllabus by the Court

1. Punishment for crime does not begin until after the accused has been convicted and sentenced; any imprisonment endured prior to conviction and sentence will not inure to the benefit of such person as part of his punishment.

2. In a criminal case, after a conviction, the trial court in imposing judgment and sentence, may take into consideration the time of imprisonment prior thereto, but such is not a matter of right of the prisoner, or of authority of the trial court under the law, but is a matter of the trial court's discretion only, and the granting of credit for the same, as such, is not within its authorized statutory limits, but such authority is purely within executive clemency powers. Art. 6, § 10, Oklahoma Constitution.

3. A writ of prohibition is a common-law writ, as a writ of prohibition is not mentioned in Oklahoma statutes.

4. The writ of prohibition lies only as between courts which sustain to each other the relation of superior and inferior, and cannot issue from a court to prohibit another court which is in no manner subordinate or inferior to it.

5. Writ of prohibition may not issue to prevent inferior court from erroneously exercising jurisdiction, but only to prohibit proceedings as to which inferior tribunal is wholly without jurisdiction, or threatens to act in excess of jurisdiction.

6. The Supreme Court, the Criminal Court of Appeals, district and county courts have concurrent original jurisdiction to issue writs of habeas corpus.

7. Ordinarily in a proceeding for writ of prohibition this court will not inquire into the merits of a habeas corpus action pending in an inferior court, but a prior decision on the question involved may be amplified and clarified for the guidance of lower court in arriving at the right conclusion.

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

W. A. Lackey, pro se.

BRETT, Judge.

This is a petition for a writ of prohibition brought by Honorable Jerome J. Waters, Warden of the State Penitentiary at McAlester, Oklahoma, to prohibit the Honorable W. A. Lackey, Judge of the District Court of Pittsburg county, Oklahoma, from usurping and exercising unauthorized jurisdiction. Ray v. Stevenson, 71 Okl.Cr. 339, 111 P.2d 824; Moss v. Arnold, 63 Okl.Cr. 343, 75 P.2d 491; State ex rel. Burford v. Sullivan, 86 Okl.Cr. 364, 193 P.2d 594, holding that the writ of prohibition though not provided for by the Constitution or any statutory provision is an extraordinary judicial writ which may be issued out of a court of superior jurisdiction to keep inferior courts and tribunals within the limits and bounds prescribed for them by law, where they seek to act in excess of jurisdiction, etc. It thus appears this court is vested with authority under the law in a proper case to grant the writ of prohibition.

The facts herewith presented are substantially as hereinafter set forth. On March 6, 1950 Arthur S. Elderking entered his plea of guilty in the district court of Comanche county, Oklahoma, to a charge of Larceny of Livestock, Title 21, § 1716, O.S.A.1941, 1951, wherein he was sentenced to 6 years in the State Penitentiary, and in addition thereto said judgment provided, 'It is further ordered by the court that said defendant have credit on this sentence of 67 days served in the county jail of Comanche county, Oklahoma'. It appears said sentence has been fully discharged with good time credits, etc., except the 67 days which credit aforesaid the Warden refuses to recognize as being a valid provision in the judgment. To enforce the provisions of said judgment and sentence petition for habeas corpus was filed in the district court of Pittsburg county before Honorable W. A. Lackey. The petition therein alleged that the petitioner was entitled to said credit on said term of imprisonment of 67 days spent in jail before judgment and sentence as in said judgment provided which the Warden of the said penitentiary refused to recognize, and that the same should be enforced by writ of habeas corpus ordering the petitioner released.

Response was made therein setting forth a denial to the right of recognition of the 67 days jail time under the terms of said judgment and sentence, as not being authorized by law. After hearing thereon and on February 26, 1952 Honorable W. A. Lackey undertook to order and direct that the petitioner Arthur S. Elderking should receive credit for the 67 days served in jail prior to the judgment and sentence, and was about to order his release from said penitentiary by writ of habeas corpus on March 4, 1953.

To prevent the aforesaid action by Judge Lackey this action for a writ of prohibition was instituted in the Criminal Court of Appeals by petition on March 3, 1953. An alternative writ of prohibition was issued staying said proceedings, in the district court of Pittsburg county, until the further order of this court, and ordered respondent to show cause on March 10, 1953 why said order should not be made permanent and absolute restraining any further action in said habeas corpus proceedings.

To the petition and order Judge Lackey made response in substance to the effect that said court had construed the terms of said judgment as being equivalent to pronouncing a judgment of 5 years, 9 months and 23 days imprisonment and that said court was of the opinion said provision of credit of the 67 days jail time did not fall within the cases of Ex parte Tartar, Okl.Cr.App., 231 P.2d 709, not yet reported in State reports, and Ex parte Colbert, Okl.Cr.App., 235 P.2d 541, not yet reported in State reports. Hearing was had herein on said petition for writ of prohibition on March 10, 1953, and said matter submitted on the record. The respondent makes the contention as hereinbefore set forth, and further urges that because in Ex parte Colbert the sentence imposed was the minimum under the law and in Ex parte Tartar no express provision was made in the judgment and sentence therein involved for an allowance as jail time as was done in the case at bar, therefore those cases are no limitation on the respondent's power to grant said relief herein by habeas corpus. There is merit in the learned Judge Lackey's position. We can see where the foregoing cases Ex parte Tartar and Ex parte Colbert, under the conditions herein presented, may need amplification and clarification on the question of a trial court granting credit in a judgment for jail time, as such, against which the alternative writ of prohibition was granted. It was this court's intention in both of said cases to hold that trial courts were without authority under the law to grant credit for jail time, either before or after conviction and judgment and sentence. We are of the opinion that in the absence of statute authorizing the trial court to grant credit for jail time served, either before or after conviction and judgment and sentence, the same is not within the power of the trial court, to grant the same, as such. Of course the matter of fixing the penalty in the judgment, within the limits prescribed by statute, is within the sound judicial discretion of the trial court. In cases where the penalty is less than the maximum, it is not subject to inquiry as to whether the trial court considered jail time in mitigation of punishment. What determines the elemental foundations which motivated the trial court's conclusion, as to a just penalty in the law, may be a matter between only the judge and his good conscience, and is not subject to inquiry by us in the absence of a clear abuse thereof. Hence in many cases, jail time in mitigation may have been considered by the trial court. We do know however, that neither in common law nor in the statutes of Oklahoma is the granting of jail time as such, in a judgment as was done herein, authorized by law. The logic of our conclusion is strongly supported by the reasoning in People ex rel. Stokes v. Warden of State Prison, 66 N.Y. 342, 345, 346, as applicable herein:

'Punishment for the commission of crime is that pain, penalty or forfeiture which the law exacts, and the criminal pays or suffers for the offence. In legal view, it cannot be said to have been exacted, nor to have been endured or begun to be endured, until the commission of the particular crime has been legally determined, and the particular criminal legally ascertained; nor until the due sentence, that is, the judicial fixing and utterance, of the definite kind, amount, or period of punishment has been authoritatively, and in due from of law and proceeding, pronounced upon him for his crime, after his conviction therefor. Punishment is a consequence of crime, to be sure, but in a legal view, it is the immediate consequences of only a conviction of crime. Hence, any pain or penalty which the offender has suffered before conviction and before sentence has been pronounced upon him is illegal, or is due to some demand of the law other than that based upon his conviction. In either case, it fails...