Ex Parte Pike

Court of Criminal Appeals of Oklahoma

Ex Parte Pike

1931 OK CR 89, 296 P. 529, 50 Okla. Crim. 125, 1931 Okla. Crim. App. LEXIS 76

CourtCourt of Criminal Appeals of Oklahoma

DecidedFebruary 28, 1931

DocketNo. A-7967.

StatusPublished

Cited by5 cases

This text of 1931 OK CR 89 (Ex Parte Pike) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Oklahoma primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Ex Parte Pike, 1931 OK CR 89, 296 P. 529, 50 Okla. Crim. 125, 1931 Okla. Crim. App. LEXIS 76 (Okla. Ct. App. 1931).

Pincite

Opinion

EDWARDS, J.

This is an original proceeding in habeas corpus. Petitioner alleges that he is unlawfully restrained by the warden of the penitentiary at McAlester; that, with others, in the district court of Craig county, he was charged with conjoint robbery alleged to have been committed July 19, 1923; that he was convicted, and in November, 1923, he was sentenced to serve a term of 15 years; that at the date of the crime a|lleged, the punishment fixed by law (chapter 85, Sess. Laws 1923) was a minimum of 25 years; that, a sentence of 15 years being contrary to law, the restraint of petitioner is illegal.

It is well settled that the writ of habeas corpus cannot be used to- perform the office of an appeal. It is limited to cases in which the judgment and sentence attacked is clearly void. Ex parte Dunn, 33 Okla. Cr. 190, *126 242 Pac. 574; Ex parte Hollingshead, 24 Okla. Cr. 131, 216 Pac. 486; Ex parte King, 41 Okla. Cr. 241, 272 Pac. 389. Where petitioner is imprisoned on a judgment of conviction for crime upon a final judgment of a court of competent jurisdiction, this court in habeas corpus wiljl not look to the record further than to ascertain if the court had jurisdiction, and, if so, if in the course of the proceedings it lost jurisdiction. Mere errors or irregularities, however numerous and gross, committed during the trial, which render a judgment voidable merely, cannot be corrected by habeas corpus. Ex parte Lyde, 17 Okla. Cr. 618, 191 Pac. 606; Ex parte Barnette, 29 Okla. Cr. 80, 232 Pac. 456.

Chapter 85, Sess. Laws 1923, fixed the punishment for robbery at a minimum of 25 years. It was error for the trial court to instruct the jury that they might assess a less punishment. This error, however, did not divest the court of jurisdiction. Cornett v. State, 40 Okla. Cr. 172, 267 Pac. 869; Patterson v. State, 44 Okla. Cr. 298, 280 Pac. 862.

The writ is denied.

CHAPPELL, J., concurs. DAVENPORT, P. J., not participating.

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EDWARDS, J.

This is an original proceeding in habeas corpus. Petitioner alleges that he is unlawfully restrained by the warden of the penitentiary at McAlester; that, with others, in the district court of Craig county, he was charged with conjoint robbery alleged to have been committed July 19, 1923; that he was convicted, and in November, 1923, he was sentenced to serve a term of 15 years; that at the date of the crime a|lleged, the punishment fixed by law (chapter 85, Sess. Laws 1923) was a minimum of 25 years; that, a sentence of 15 years being contrary to law, the restraint of petitioner is illegal.

It is well settled that the writ of habeas corpus cannot be used to- perform the office of an appeal. It is limited to cases in which the judgment and sentence attacked is clearly void. Ex parte Dunn, 33 Okla. Cr. 190, *126 242 Pac. 574; Ex parte Hollingshead, 24 Okla. Cr. 131, 216 Pac. 486; Ex parte King, 41 Okla. Cr. 241, 272 Pac. 389. Where petitioner is imprisoned on a judgment of conviction for crime upon a final judgment of a court of competent jurisdiction, this court in habeas corpus wiljl not look to the record further than to ascertain if the court had jurisdiction, and, if so, if in the course of the proceedings it lost jurisdiction. Mere errors or irregularities, however numerous and gross, committed during the trial, which render a judgment voidable merely, cannot be corrected by habeas corpus. Ex parte Lyde, 17 Okla. Cr. 618, 191 Pac. 606; Ex parte Barnette, 29 Okla. Cr. 80, 232 Pac. 456.

Chapter 85, Sess. Laws 1923, fixed the punishment for robbery at a minimum of 25 years. It was error for the trial court to instruct the jury that they might assess a less punishment. This error, however, did not divest the court of jurisdiction. Cornett v. State, 40 Okla. Cr. 172, 267 Pac. 869; Patterson v. State, 44 Okla. Cr. 298, 280 Pac. 862.

The writ is denied.

CHAPPELL, J., concurs. DAVENPORT, P. J., not participating.

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Bluebook (online)

1931 OK CR 89, 296 P. 529, 50 Okla. Crim. 125, 1931 Okla. Crim. App. LEXIS 76, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ex-parte-pike-oklacrimapp-1931.

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