Ex Parte Howard

1909 OK CR 29, 103 P. 663, 2 Okla. Crim. 563, 1909 Okla. Crim. App. LEXIS 171

• Court: Court of Criminal Appeals of Oklahoma
• Decided: August 23, 1909
• Docket: No. A-286.
• Status: Published

Opinion

DOYLE, Judge,

(after stating the facts as above). The petitioner complains that he is restrained of his liberty “without due process of law,” because the record fails to show a sufficient judgment and sentence. On the face of the petition the writ should be denied, as it appears ’that all the substantial requirements of the statute were complied with, and, while the judgment is not recorded with as much precision and formality as it might have been, .it nevertheless is sufficiently certain and does not appear as a recital of the clerk, but as the act and consideration of the court by which it was adjudged that defendant was guilty, and sentence was pronounced. Counsel for defendant seem to have confounded the judgment itself with the entry or record thereof. The judgment is a judicial act of the court; the entry is the ministerial act of-the clerk. The judgment is as final when pronounced by the court as when it is entered and recorded by the clerk, as required by. statute. The record discloses .that the judgment and sentence of the court was rendered upon the verdict of the jury, and from this judgment petitioner appealed to the Supreme Court, from that court the case was transferred to this court and a decision rendered, affirming the judgment, and the cause was remanded, with direction to the county court to cause the judgment to be executed.

It is now asserted that there was no judgment to appeal from, when said appeal was taken. If this was a fact, it must have been known to appellant, and it was the duty of the appellant to bring the matter to the attention of the court below, or to the appellate court wherein he was asking a reversal of the judgment. Appellant's petition in error and brief on his appeal set forth the fact of a final judgment, and the recitals of the record showed the same. A defendant cannot thus speculate on his chances to secure a reversal of a judgment and sentence and keep the point here presented in reserve to be sprung in the event his appeal fails to reverse the judgment. Such practice is reprehensible, to say the least. The minutes show that judgment was rendered, by the court, when rendered, against whom, for what offense, and that sentence was pronounced. This is all that is necessary.

The cases cited by counsel for petitioner are not habeas corpus cases, but are cases on appeal or writ of error, and therefore can have but little, if any', application in this case. If any judgment was rendered, the court had jurisdiction to issue the commitment. The county'" court of Grady county is a court of record and general jurisdiction, and all presumptions, in the absence of anything to the contrary, must be construed in its favor. It has exclusive jurisdiction in this class of misdemeanors. The judgment of the countyr court in said case, notwithstanding its alleged irregularities, cannot be considered as void., when attacked collaterally in a habeas corpus proceeding.

It is therefore considered, ordered, and decreed that the pe titioner, Earl Howard, is now lawfully in the custody of the respondent, the sheriff of Grady county.

For the reasons stated, the writ of habeas corpus is denied.

FUEMAN, PRESIDING Judge, and OWElN, Judge, concur.