In Re Cavers

1944 OK CR 86, 154 P.2d 106, 79 Okla. Crim. 262, 1944 Okla. Crim. App. LEXIS 86

• Court: Court of Criminal Appeals of Oklahoma
• Decided: December 13, 1944
• Docket: No. A-10575.
• Status: Published

Opinion

JONES, P. J.

This is an original proceeding in habeas corpus instituted by Walter Cavers, an inmate of tiie Oklahoma State Penitentiary.

The verified petition alleges facts surrounding the conviction of the defendant on November 12, 1931, of the crime of robbery, in the district court of Oklahoma county and his sentence to serve a term of 35 years imprisonment in the State Penitentiary.

After reciting many facts concerning the arrest and incarceration of the petitioner and the procedure followed in procuring his plea of guilty, the petition prays that this court commute the sentence of defendant from 35 years to 28 years’ imprisonment in the State Penitentiary. The Attorney General has filed a demurrer to the petition.

Under the provision of 22 O. S. 1941 § 1066, this court, in any case which is appealed, may reverse, affirm, or modify the judgment appealed from, or may order a new trial. If this had been an appeal instead of an original proceeding in habeas corpus, and the facts concerning the nature of the crime and the youthfulness of petitioner were as alleged in his petition, the court might have been inclined under the above statute to modify the judgment in the furtherance of justice.

After the conviction has become final, and no appeal has been lodged in this court, the Criminal Court of Appeals no longer has authority to modify any sentence assessed against an accused.

The sole power to issue commutations after conviction is'vested in the Governor under the provision of article 6, sec. 10, Oklahoma Constitution.

Since the Criminal Court of Appeals is without authority to grant the relief sought in the petition, it follows that the petition for writ of habeas corpus should be and the same is hereby denied.

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