Ex Parte Smith

Court of Criminal Appeals of Oklahoma

Ex Parte Smith

1920 OK CR 145, 190 P. 1092, 17 Okla. Crim. 578, 1920 Okla. Crim. App. LEXIS 132

CourtCourt of Criminal Appeals of Oklahoma

DecidedJuly 20, 1920

DocketNo. A-3739.

StatusPublished

Cited by6 cases

This text of 1920 OK CR 145 (Ex Parte Smith) 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 Smith, 1920 OK CR 145, 190 P. 1092, 17 Okla. Crim. 578, 1920 Okla. Crim. App. LEXIS 132 (Okla. Ct. App. 1920).

Pincite

Opinion

DOYLE, P. J.

In this proceeding petitioner by his counsel, Jeff D. McLendon, presented to this court on April 1, 1920, a petition alleging that he is unlawfully imprisoned in the state penitentiary at McAlester and restrained of his liberty by Fred .Switzer, warden of said institution; that said imprisonment is under and by virtue of a commitment issued on the 20th day of March, 1920, by the court clerk of McGurtain county, which commitment is predicated upon conviction of petitioner and judgment rendered in the district court of McCurtain county on the 22d day of September, 1917, sentencing him to serve a term of two years’ imprisonment in the penitentiary on a charge of embezzlement; that petitioner prosecuted an appeal from said judgment to the Criminal Court of Appeals, and on the 19th day of August, 1919, said conviction was affirmed (see 16 Okla. Cr. 701, 183 Pac. 515) ; that in the opinion the court says that where the record fails to show that the judgment was superseded by the giving of the required super-sedeas bond in the court below, the presumption obtains that the judgment was immediately carried into effect by incarceration in the penitentiary; that there was never any mandate in said cause spread upon the minutes or *580 journal of the district court of MeCurtain county until the 27th day of March, 1920.

The Attorney General filed a general demurrer on the ground that said petition does not state facts sufficient to entitle petitioner to the relief prayed for.

It has been uniformly held by this court that, where a convicted defendant is at liberty and has not served his sentence, and the same is not stayed as provided- by law, he may be arrested as on escape and ordered into custody on the unexecuted judgment, and that expiration of time without imprisonment is in no sense an execution of the sentence. See Ex parte Eldridge, 3 Okla. Cr. 499, 106 Pac. 980, 27 L. R. A. (N. S.) 625, 139 Am. St. Rep. 967; Ex parte Alexander, 5 Okla. Cr. 196, 113 Pac. 993; Ex parte Eley, 9 Okla. Cr. 76, 130 Pac. 821; Ex parte Riggert, 33 Okla. 303, 125 Pac. 485.

It appearing that the application is insufficient to show that petitioner is entitled to the writ or rule to show cause, the demurrer is sustained, and the writ refused.

ARMSTRONG and MATSON, JJ., concurring.

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DOYLE, P. J.

In this proceeding petitioner by his counsel, Jeff D. McLendon, presented to this court on April 1, 1920, a petition alleging that he is unlawfully imprisoned in the state penitentiary at McAlester and restrained of his liberty by Fred .Switzer, warden of said institution; that said imprisonment is under and by virtue of a commitment issued on the 20th day of March, 1920, by the court clerk of McGurtain county, which commitment is predicated upon conviction of petitioner and judgment rendered in the district court of McCurtain county on the 22d day of September, 1917, sentencing him to serve a term of two years’ imprisonment in the penitentiary on a charge of embezzlement; that petitioner prosecuted an appeal from said judgment to the Criminal Court of Appeals, and on the 19th day of August, 1919, said conviction was affirmed (see 16 Okla. Cr. 701, 183 Pac. 515) ; that in the opinion the court says that where the record fails to show that the judgment was superseded by the giving of the required super-sedeas bond in the court below, the presumption obtains that the judgment was immediately carried into effect by incarceration in the penitentiary; that there was never any mandate in said cause spread upon the minutes or *580 journal of the district court of MeCurtain county until the 27th day of March, 1920.

The Attorney General filed a general demurrer on the ground that said petition does not state facts sufficient to entitle petitioner to the relief prayed for.

It has been uniformly held by this court that, where a convicted defendant is at liberty and has not served his sentence, and the same is not stayed as provided- by law, he may be arrested as on escape and ordered into custody on the unexecuted judgment, and that expiration of time without imprisonment is in no sense an execution of the sentence. See Ex parte Eldridge, 3 Okla. Cr. 499, 106 Pac. 980, 27 L. R. A. (N. S.) 625, 139 Am. St. Rep. 967; Ex parte Alexander, 5 Okla. Cr. 196, 113 Pac. 993; Ex parte Eley, 9 Okla. Cr. 76, 130 Pac. 821; Ex parte Riggert, 33 Okla. 303, 125 Pac. 485.

It appearing that the application is insufficient to show that petitioner is entitled to the writ or rule to show cause, the demurrer is sustained, and the writ refused.

ARMSTRONG and MATSON, JJ., concurring.

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Bluebook (online)

1920 OK CR 145, 190 P. 1092, 17 Okla. Crim. 578, 1920 Okla. Crim. App. LEXIS 132, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ex-parte-smith-oklacrimapp-1920.

Opinion

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