De Wolf v. State

• Decision Date: 07 April 1953
• Docket Number: No. A-11919,A-11919
• Citation: 96 Okla.Crim. 382,256 P.2d 191
• Parties: DE WOLF v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 191

256 P.2d 191

96 Okla.Crim. 382

DE WOLF v. STATE.

No. A-11919.

Criminal Court of Appeals of Oklahoma.

April 7, 1953.

Syllabus by the Court.

1. Where a convicted person has appealed and his conviction has been determined adversely to him, he may not retry the issues again by habeas corpus.

2. A person charged with a felony is entitled to appear during the trial free of all manner of restraint except in cases of extreme necessity where there is evident danger of escape of the prisoner or for the protection of the prisoner or the court or those in attendance upon the court, he may be restrained in such manner as will insure an orderly trial and in keeping with the ends of justice.

3. The application for permission to restrain a prisoner accused of a capital offense by means of surveillance or shackles to prevent acts of violence or escape is a question addressed to the sound judicial discretion of the trial court and the evidence in relation thereto should be heard by the court in the absence of the jury.

4. Where defendant, who was being tried for murder, had a long criminal record and had escaped from prison and had attempted escapes from county jails, and had told authorities that if he thought he could escape without being shot, he would do so, the trial court did not abuse its discretion in ordering that the defendant be kept in leg cuffs during the trial, DeWolf v. State, Okl.Cr.App., 245 P.2d 107, and such action in the trial court so restraining the accused at the trial does not constitute grounds for relief by habeas corpus.

5. Right to counsel is one of substance and is not satisfied by mere legalistic formality.

6. A defendant in a criminal prosecution for whom an attorney has been appointed is entitled to a fair trial, not to a perfect trial, and services of one of the public defenders, Title 19, §§ 134a to 134c, inclusive, O.S.A.1941 and 1951, meets the requirements of due process of law clause, 14th Amendment to the United States Constitution, Oklahoma Constitution and statutes, where such public defender is a member in good standing at the bar of 25 years experience, where he gives his complete loyalty, serves the defendant in good faith to the best of his ability, and his service is of such character as to preserve the essential integrity of the proceedings as a trial in a court of justice.

7. The granting of a new trial on the ground of newly discovered evidence is controlled by statute and the motion for such new trial on the ground of newly discovered evidence must be made not later than the next succeeding term of court after the judgment was rendered. 22 O.S.1951 § 953.

8. Alleged newly or after-discovered evidence, where cumulative or supplemental, bearing on the merits of a case, does not constitute ground for relief by habeas corpus.

9. Habeas corpus is not a substitute for appeal, to correct irregularities, or errors occurring in the trial of a case or a device for retrying the issue determined adversely to petitioner.

10. Inquiry in habeas corpus is limited to jurisdictional matters growing out of a lack of jurisdiction or a loss thereof, and where the trial court had jurisdiction of the person of the accused, of the subject matter, and authority under the law to pronounce the judgment and sentence rendered, and committed no act to cause the trial court to lose jurisdiction, habeas corpus will be denied.

Cleon A. Summers, Muskogee, George Campbell, Sand Springs, for petitioner.

Mac Q. Williamson, Atty. Gen., Owen J. Watts, Asst. Atty. Gen., and Lewis A. Wallace, Asst. Atty. Gen., for respondent.

BRETT, Judge.

This is an original action in habeas corpus brought by Carl Austin DeWolf, wherein he alleges that he is being unlawfully restrained of his liberty by the warden of the State Penitentiary at McAlester, Oklahoma. He complains that the cause of his restraint is by reason of a certain conviction by jury and judgment and sentence entered in the District Court of Tulsa County, Oklahoma, on October 5, 1949, fixing his punishment at death by electrocution, in an action wherein the petitioner was charged with the murder on August 30, 1946, of police officer Gerald St. Clair in Tulsa on said last date, which conviction has been sustained on appeal to this court. DeWolf v. State, 245 P.2d 107.

Petitioner complains that the judgment and sentence entered by the aforesaid District Court is illegal, unlawful and unconstitutional, in violation of the petitioner's substantial rights and privileges and is contrary to the provisions of the Constitution of the State of Oklahoma and of the United States: Art. II, Sections 7 and 20, and the 5th and 14th Amendments to the Constitution of the United States, respectively. In support of the claimed constitutional violations, it is asserted that at the trial of the petitioner in said District Court, the defendant was allowed to be shackled the entire period of his trial, save at the time he was on the witness stand testifying in his own behalf, and was brought into the courtroom manacled and shackled and certain of the manacles placed on his wrists were removed and re-applied repeatedly in the presence of the jury, that each opening of the courtroom was guarded by officers and that the courtroom was bristling with policemen and deputy sheriffs and that the petitioner could not have effected his escape, even if not shackled, that all of the things alleged prevented the petitioner from having a fair and impartial trial, and that said procedure was unwarranted and without authority of law.

The petitioner further complains that the trial court abused its discretion in forcing defendant to go to trial with what he alleges was substitute counsel, and in denying defendant's oral motion for continuance; that the said substitute counsel was unfamiliar with the case and unable to proceed, without attendance of counsel who prepared said case, thereby denying petitioner the right to effective counsel at every stage of the proceedings.

The petitioner further alleges that since the trial of the case and the affirmance of the judgment and sentence by the Criminal Court of Appeals, which appears in 245 P.2d 107, that he has discovered evidence which would prove the innocence of the petitioner. He alleges that the testimony of certain eyewitnesses to the killing of officer St. Clair shows beyond a doubt that he was not the person who fired the fatal shot. That at the time of the trial he was a pauper and without friends to seek out witnesses to the crime to prove his innocence. That notwithstanding, the statutes of the State of Oklahoma, Title 22, § 953, O.S.A.1941 and 1951, that newly discovered evidence must be presented not later than the next succeeding term of court, he is entitled under humanitarian principles to have this evidence presented, and that the foregoing statute is unconstitutional and would deprive the petitioner of his life without due process.

To these allegations, the State of Oklahoma has made response, admitting petitioner was being held under any by virtue of the conviction, judgment, sentence, and death warrant issued by the Honorable Eben L. Taylor, trial judge, on October 5, 1949, for the murder of Gerald St. Clair in Tulsa, Oklahoma, on August 30, 1946. That stays of execution have been granted by the Governor of Oklahoma from time to time, the last of which was on March 27, 1953, staying execution until April 13, 1953. The respondent specifically denies that the petitioner is being unlawfully restrained of his liberty in violation of his statutory or constitutional rights of either the Constitution of the State of Oklahoma or the Constitution of the United States. Respondent further alleges that the petitioner appealed from said judgment and sentence (of which the record shows the case-made therefore was filed in the District Court of Tulsa, Oklahoma, on December 19, 1949, and the appeal was filed in this court on December 31, 1949, same being herein DeWolf v. State, and the opinion of the Criminal Court of Appeals affirming said judgment and sentence was rendered on May 28, 1952, which was published in 245 P.2d 107, supra, and by reference was made a part of said response. The respondent further alleges that the error complained of with reference to the petitioner being shackled during said trial was fully considered and passed on by this court in said opinion.

The respondent specifically denied that the trial court erred in not granting a continuance on the ground of absence of one of his counsel, and alleges that petitioner was ably defended at the trial by two competent lawyers, both of whom being public defenders in Tulsa county, one of whom had more than 20 years experience as an attorney. Respondent denied all the allegations contained in the petition in regard to newly discovered evidence, and then concluded by alleging that no jurisdictional matters or facts sufficient to warrant the release of the petitioner were alleged in the petition for habeas corpus, the petitioner appearing by his counsel and the Attorney General appearing for the respondent, both parties introduced evidence in support of their respective positions and the cause was thereupon submitted.

It is the settled law that where a convicted person has appealed and his conviction determined adversely to him, he may not retry the issues again by habeas corpus. Ex parte Baker, 76 Okl.Cr. 396, 137 P.2d 242; In re Booth, 74 Okl.Cr. 406, 126 P.2d 751; Ex parte Washington, 92 Okl.Cr. 337, 223 P.2d 552.

Because of the extraordinary manner in which this action was instituted more than ten months after the opinion of this court was rendered on May 28, 1952, and the extravagant statements made by counsel for the accused, Mr. Campbell, and with the utmost concern for reaching a correct conclusion, we shall treat the questions presented at greater length than ordinarily would be required in a habeas corpus action. Furthermore, the fact that the...