Ex Parte Stevens

1946 OK CR 38, 168 P.2d 136, 82 Okla. Crim. 232, 1946 Okla. Crim. App. LEXIS 192

• Court: Court of Criminal Appeals of Oklahoma
• Decided: April 10, 1946
• Docket: No. A-10716.
• Status: Published

Opinion

JONES, P. J.

This is an original proceeding in babeas corpus instituted by tbe petitioner, F. C. Stevens, to secure bis release from confinement in tbe State Penitentiary.

Tbe verified petition filed herein alleges that tbe petitioner was convicted in tbe district court of Murray county, on January 23, 1946, by a verdict of tbe jury of tbe crime of rape in tbe first degree and sentenced to serve a term.of 99 years in tbe State Penitentiary.

Tbe petition further alleged that tbe criminal complaint filed against him in tbe justice of tbe peace court did not allege the commission of any public offense by tbe defendant and that the original information filed against Mm in tbe district court of Murray county did not allege tbe commission of any public offense, but tbat before the date of the trial, tbe county attorney of Murray county amended tbe information without notice to tbe petitioner or bis attorneys by inserting sufficient allegations to make tbe amended information allege tbe commission of tbe crime of rape in tbe first degree. Tbat tbe petitioner objected to going to trial upon tbe amended information for tbe reason tbat be did not have an examining trial upon a criminal complaint charging him with a violation of any law of tbe State of Oklahoma. Tbat tbe trial proceeded over tbe objection of defendant and resulted in bis conviction as above set forth.

A demurrer was filed on behalf of the respondent by tbe Attorney General.

The petitioner has six months from tbe date judgment was pronounced against him in which to appeal to this court from said conviction. 22 O. S. 1941 § 1054. He has abundant time within which to perfect an appeal. Tbe matters complained of are properly matters which may be urged on appeal, but are not such questions as may be raised in a habeas corpus proceeding.

It is well-settled tbat tbe Criminal Court of Appeals in a habeas corpus proceeding will not look beyond the judgment and sentence of any court of competent jurisdiction as to mere irregularities of procedure, or errors of law on questions over which tbe court had jurisdiction. Ex parte West, 62 Okla. Cr. 260, 71 P. 2d 129. And tbat tbe writ of habeas corpus cannot be substituted for an appeal. Ex parte Thomas, 56 Okla. Cr. 258, 37 P. 2d 829; Ex parte Miles, 56 Okla. Cr. 69, 33 P. 2d 636; Ex parte Williams, 70 Okla. Cr. 377. 106 P. 2d 524.

We shall not go into an extended discussion of the question raised by the petitioner, as he may again raise this question in the proper manner by appeal, where the entire record of the trial proceedings will be before us for review. Neither the judgment and sentence pronounced against the petitioner nor the amended information are attached to his petition, but under the allegations of the petition, it is our conclusion that the petitioner is seeking- to present questions on habeas corpus which are properly matters which he should present by appeal.

The writ of habeas corpus .is denied.

BAREFOOT, J., concurs. DOYLE, J., not participating.