Hamlin v. State

1912 OK CR 395, 126 P. 704, 8 Okla. Crim. 187, 1912 Okla. Crim. App. LEXIS 394

• Court: Court of Criminal Appeals of Oklahoma
• Decided: October 5, 1912
• Docket: No. A-1155.
• Status: Published

Opinion

FURMAN, P. J.

When this case was called for trial, appellant entered the following plea of former conviction:

“The defendant "pleads that he has already been convicted of the offense charged in this indictment by the judgment of the court of Porter township, to wit, by W. S. Wolfenberger, justice of the peace for Porter township, in Muskogee county, state of Oklahoma, by its judgment rendered at the office of said W. S. Wolfenberger, justice of the peace for Porter township, in Muskogee county, state of Oklahoma, on the 19th day of May, 1910.”

This plea was bad upon its face. The information charged the crime of maiming, which is a felony, punishable by imprisonment in the state prison not exceeding seven years, or by imprisonment in the county jail not exceeding one year, or by a fine not exceeding $1,000, or by both such fine and imprisonment. The justice of the peace had no jurisdiction to try this case, except as an examining court, and any pretended judgment which .he might have entered was a nullity, and is not a bar to this prosecution. See Boswell v. State, 20 Fla. 869; Mikels v. State, 50 Tenn. 321; Henkel v. State, 27 Tex. App. 510, 11 S. W. 671; Norton v. State, 14 Tex. 387. The court, therefore, did not err in overruling appellant’s plea of former conviction.

When a plea of former' conviction is clearly bad upon its face, it should be stricken out, without wasting any time in its ■consideration. We have read the evidence, and examined the instructions given by the court, and those requested and refused, and fail to find any error therein which \yotild warrant us in disturbing this verdict. We think that the evidence sustains the verdict.

The judgment of the lower court is therefore affirmed.

ARMSTRONG and DOYLE, JJ., concur.