Ex parte Massengale

Ex parte Massengale
1939 OK CR 100
93 P.2d 41
67 Okl.Cr. 181
Decided: 08/15/1939
Oklahoma Court of Criminal Appeals

(Syllabus.)

1. Courts-Presence of Officers of Court Necessary for Performance of Functions of Court. The opening, holding, and adjournment of court are the exercise of judicial powers to be performed by the court. To perform the functions of court, the presence of the officers constituting the court is necessary, and they must be present at the time and place appointed by law.

2. Same-Sessions, Proceedings and Adjournments Provable Only by Records of Court. Whether a court of record was in session at a particular time is a question to be determined by the records of such court, and the orders of a court of record which appear to have been properly entered cannot be impeached by evidence aliunde the record. Its sessions, proceedings, and adjournments can be proved only by its records.

3. Same-Assemblage of Officers at Time not Authorized by Law not a "Court"-Invalidity of Proceedings. An assemblage of the proper officers at the proper place, but at a time not authorized by law, does not constitute a court; and any judicial proceedings then had, which under the law can be had only in term time, are null and void.

4. Same-Terms of Court Begin on Day Fixed by Law-Lapse of Term-Lapsed Term Cannot Be Revived by Any Officer of Court. The terms of courts of record begin on the day fixed by law; and if the judge be not present in his court, nor a judge be assigned, or a judge pro tempore be selected, within two days after the first day of the term, then the term lapses, and cannot thereafter be revived by the judge or any other officer of the court; and any attempted proceedings had in such court after the lapse of the term is coram non judice and void.

5. Judgment and Sentence-Judgment of Conviction a Nullity Where Rendered at Time Court Cannot Be Legally Held. The court must exercise its jurisdiction within its terms as regulated by law, and where a motion duly filed for a new

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trial is heard and denied and judgment of conviction rendered at a time when the court cannot be legally held, the proceedings are void, and the judgment a nullity.

6. Habeas Corpus--Scope of Review. The scope of review on habeas corpus is limited to an examination of the jurisdiction of the court whose judgment of conviction is challenged.

7. Same-Jurisdiction of Court to Render Particular Judgment by Which Person Is Imprisoned. The jurisdiction of the court to render a particular judgment and sentence by which a person is imprisoned is a proper subject of inquiry on habeas corpus.

8. Same-Remedy Where Sentencing Court Had no Jurisdiction Because of Lapse of Term. The remedy of habeas corpus is available whenever it is found that the court in which petitioner was convicted had no jurisdiction when the judgment of conviction was rendered by reason of lapse of the term.

9. Habeas Corpus--Writ as Precious Safeguard of Personal Liberty. It must never be forgotten that the writ of habeas corpus is the precious safeguard of personal liberty, and there is no higher duty than to maintain it unimpaired.

10. Trial-Failure of Judge to Attend and Open Court on Day Fixed by Law Operative to Adjourn Term. The failure of the judge of the superior court of Okmulgee county to attend and open court upon the day fixed by the statute, or on the following day, in the Okmulgee division of said court, operated to adjourn the March, 1922, term of said court, and no further session of the court in the OkmuIgee division could be held until the next regular term, or until a special term was legally called.

11. Same-Judgment and Sentence of Imprisonment Void Where not Rendered in Term Time. At the November, 1921, term of said superior court, Okmulgee division, the jury by their verdict found Roy Massengale, petitioner, guilty of murder. On March 28, 1922, the court overruled motion for new trial and sentenced petitioner to imprisonment in the state penitentiary for life. Held, that the judgment and sentence, not having been rendered in term time, was illegal and void.

Proceeding in the matter of the application of Roy Massengale for a writ of habeas corpus to be directed to

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Jess F. Dunn, Warden of the State Penitentiary. Writ awarded and petitioner discharged.

On behalf of Roy Massengale, a duly verified petition for writ of habeas corpus, by which petitioner, Roy Massengale seeks to secure his release by order of this court from the custody of Jess F. Dunn, warden of the state penitentiary, was filed in this court and presented to the Presiding Judge.

Thereupon a rule to show cause was entered and issued, returnable July 19, 1939.

The amended petition with a duly authenticated transcript of the record attached thereto by leave of court filed August 1st, shows that the petitioner was on March 28, 1922, convicted in the superior court of Okmulgee county, Okmulgee division, of the crime of murder, and was sentenced to imprisonment in the state penitentiary at McAlester for life at hard labor. On April 17th, the commitment issued and on the same day he was delivered to the warden.

It is alleged that petitioner had previously presented a similar petition to the district court of Pittsburg county, and it was denied.

It is alleged in the amended petition:

"That said restraint is illegal and void, for the following good and sufficient jurisdictional and constitutional reasons:

"1. Because the crime for which petitioner was committed was a felony and no preliminary hearing was had as provided by the laws and Constitution of the state of Oklahoma. Copies of said complaints are hereto attached, marked 'Exhibits B and C' and made a part of the original petition, and for all intents and purposes included herein.

"2. Because the information filed in the superior court, Okmulgee Division, Okmulgee county, Oklahoma, upon which petitioner was tried, sentenced and committed, was illegal and void and did not confer jurisdiction upon

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said court. A copy of said information is hereto attached, marked 'Exhibit D,' and made a part of the original petition, and for all intents and purposes included herein.

"3. Because on, to wit: March 28, 1922, the date of petitioner's alleged sentence, the March term of said court had been adjourned for the term by operation of law. A copy of said proceedings is hereto attached, marked 'Exhibit A,' and made a part of original petition, and for all intents and purposes included herein.

And concludes as follows:

"5. Because the petitioner was not informed against, tried, sentenced, and committed as provided and guaranteed him by Article VI of the Amendments to the United States Constitution, and section 7 of article II of the Constitution of Oklahoma.

"Wherefore, your petitioner prays the Honorable Court to grant a writ of habeas corpus and that he be discharged without delay from such unlawful imprisonment."

The demurrer thereto is as follows:

"Comes now Jess F. Dunn, warden of the Oklahoma State Penitentiary at McAlester, Oklahoma, respondent herein, and demurs to the petition of said Roy Massengale, for the reason that the matters and things alleged in said petition do not establish any right of action in favor of said petitioner, or show that he is entitled to the relief prayed for."

The record discloses that petitioner, Cy Dennison, and Calvin Shipman, were jointly charged with the crime of murder, and were by the committing magistrate held to answer in the superior court of Okmulgee county, on June 8, 1921; that later an information was filed in said superior court. On the hearing counsel for petitioner asked the court to take judicial notice of the files in the case of Dennison v. Christopher, Superior Judge, 19 Okla. Cr. 467, 200 P. 783, where in an application for mandamus, the judge of said superior court was ordered to certify his disqualification to try the matter in controversy.

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The record shows that petitioner's motion for new trial was filed on January 28, 1922, of the November, 1921, term of said court in the Okmulgee division. The next term was the March, 1922, term, which was to convene on the first Monday of March (March 6, 1922).

The proceedings in reference to the opening and closing of the March, 1922, term as shown by Exhibit "A" and made a part of the original petition, are as follows:

"March 6, 1922, March Term.

"Be it remembered: That on this the 6th day of March, 1922, the same being a judicial day of the regular March 1922, term. of said Court, Court convened at 9 o'clock A.M. pursuant to adjournment;

"H. R. Christopher, Judge, Absent from the County, Edna Risor, Reporter; Bertha Ross, Deputy Court Clerk; B. F. Sowers, Sheriff; W. W. Melton, Bailiff; And Court having been opened by public proclamation the following proceedings were had:

"There being no business of a criminal nature to transact, court takes recess until March 7, 1922, at 9 o'clock A.M.

"March 7, 1922.

"Be it remembered: That on this the 7th day of March, 1922, the same being a judicial day of the regular March, 1922, term of said court, court convened at 9 o'clock A.M. pursuant to adjournment;

"H. R. Christopher, Judge, Absent from the county. Present: Edna Risor, Reporter; Bertha Ross, Deputy Court Clerk, W. W. Melton, Bailiff; B. F. Sowers, Sheriff; And court having been opened by public proclamation the following proceedings were had:

"There being no business of a criminal nature to transact, Court takes recess until March 8th, 1922, at 9 o'clock a.m.

"March 8, 1922.

"Be it remembered: That on this the 8th day of March 1922, the same being a judicial day of the regular

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March 1922, term of said Court, Court convened at 9 o'clock A.M. pursuant to adjournment;

"H. R. Christopher, Judge, Absent from the County. Present: Edna Risor, Reporter; Bertha Ross, Deputy Court Clerk; B. F. Sowers, Sheriff; W. W. Melton, Bailiff; And Court having been opened by public proclamation the following proceedings were had:

"There being no business of a criminal nature to transact, Court takes recess until March 9, 1922, at 9 o'clock A.M."

"State of Oklahoma

"County of Okmulgee

}}}

ss.

"I, Jewel Montgomery, the duly elected, qualified and acting Court Clerk of the county and state aforesaid, do hereby certify that I have compared the foregoing copies of minutes containing the opening of the Superior Court, Okmulgee Division, Okmulgee County, Oklahoma, on March 6, 7, and 8, 1922, with the original minutes now remaining on file in this office, and that the same is a full, true and exact copy thereof.

"In witness whereof, I have hereunto set my hand and affixed my official seal this 8th day of August, 1939.

"Jewel Montgomery

"Court Clerk in and for Okmulgee County,

(Official Seal) Oklahoma."

Counsel for respondent demurred to the amended petition.

On August 10th, the case was argued orally by C. E. B. Cutler, representing petitioner and Sam H. Lattimore, Assistant Attorney General, representing respondent. Upon the conclusion of the argument the demurrer was overruled and the cause was submitted.

On the part of the respondent no further response nor brief was filed.

C. E. B. Cutler, of Okmulgee, for petitioner.

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Mac Q. Williamson, Atty. Gen., and Sam H. Lattimore, Asst. Atty. Gen., for respondent.

DOYLE, P. J. Petitioner, Roy Massengale, is now confined in the state penitentiary under a judgment of conviction, rendered by the superior court of Okmulgee county, Okmulgee division, in conformity to the verdict of a jury finding him guilty of murder, alleged to have been committed in said county on May 16, 1921, and fixing his punishment at imprisonment for life.

Petitioner seeks his release from the imprisonment imposed thereby upon an assumption that as it conclusively appears from the record, the March term, 1922, had adjourned by operation of law on the 8th day of March, 1922, and the proceedings had after the lapse of the term must be regarded as coram non judice and void, therefore, his imprisonment is in contravention of the due process of law clause of the Fifth Amendment, and section 1 of the Fourteenth Amendment of the Federal Constitution, U. S. C. A., also of section 7, article 2, of the State Constitution, Okla. St. Ann.

The act creating the superior court of Okmulgee county, chapter 131, Sess. Laws 1917, sec. 3890 et seq., Sts. 1931, 20 Okla. St. Ann. § 241 et seq., provides f or terms of said superior court at Okmulgee, the county seat, and at Henryetta, as follows:

"There shall be held, in each calendar year, at least six terms of said court, in said county. The terms of said court shall be held at Okmulgee on the first Monday in March, June and November, and at Henryetta on the first Monday of February, May and October; and the judge of said court shall have authority to order entered of record, fixing additional terms of said court at Okmulgee and Henryetta."

The Statute, sec. 69, O. S. 1931, 12 Okla. St. Ann. § 55, provides:

"If the judge of a court fail to attend at the time and place appointed for holding his court, the sheriff shall have

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power to adjourn the court, from day to day, until the regular or assigned judge attend or a judge pro tempore be selected; but if the judge be not present in his court, nor a judge be assigned or a judge pro tempore be selected, within two days after the first day of the term, then the court shall stand adjourned for the term."

As this section, in effect, undoubtedly provides that if the judge of any court of record, whether of the county court, superior court or a district court, fail to attend at the time and place of holding his court, as provided by law; or a judge assigned, or a judge pro tem be not selected within two days after the first day of the term, then the court shall stand adjourned for the term.

The opening, holding, and adjournment of court are the exercise of judicial powers to be performed by the court. To perform the functions of court, the presence of the officers constituting the court is necessary, and they must be present at the time and place appointed by law.

Whether a court of record was in session at a particular time is a question to be determined by the records of such court, and the orders of a court of record, which appear to have been properly entered, cannot be impeached by evidence aliunde the record. Its sessions, proceedings, and adjournments can be proved only by its records.

The record shows that petitioner's motion for a new trial was overruled, and the judgment of conviction was rendered after the March, 1922, term had lapsed.

In the case of In re James, 4 Okla. Cr. 94, 111 P. 947, 948, this court held:

"An assemblage of the proper officers at the proper place, but at a time not authorized by law, does not constitute a court; and any judicial proceedings then had, which under the law can be had only in term time, are null and void."

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In Wilson v. State, 3 Okla. Cr. 714, 109 P. 289, 290, this court held:

"The terms of courts of record begin on the day fixed by law; and if the judge be not present in his court, or a judge pro tem selected, within two days from the first day of the term, then the term lapses, and cannot thereafter be revived by the judge or any other officer of the court, and any attempted proceedings had in such court after the lapse of the term is coram non judice and void."

In Collins v. State, 5 Okla. Cr. 254, 114 P. 1127, this court held:

"Where the regular term of the court is permitted to lapse, no proceedings can be had until the next regular term, or until a term is called in the manner provided by law. Any judgments rendered by a court out of term time and after the term has lapsed are void."

In the opinion it is said:

"In the case of Andy Baker v. State, [5 Okla. Cr. 186], 113 P. 991, decided at the last term of this court, * * * this court held that it is necessary for the record when the same is complete to affirmatively show that the court convened on the regular date fixed by law and adjourned to some subsequent date in order to validate its judgment had at such subsequent term. The record in the case we are now considering plainly shows that the court failed to convene on the date fixed as the law provides, and was not convened within two days thereafter by the regular judge, no judge pro tempore was selected, nor was the term adjourned to any subsequent date. The term lapsed at the end of two days from the date provided for convening it."

The failure of the judge of the superior court of Okmulgee county to attend and open court upon the day fixed by the statute, or on the following day for opening court in the Okmulgee division of said court operated to adjourn the March, 1922, term of said court, and no further session of the court in the Okmulgee division could be held until the next regular term or until a special term was legally called.

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It follows that if there was no legal power to render the judgment or to issue the commitment, there was no competent court, and consequently no judgment or process. All is coram non judice and void.

Although no substantial objection to the granting of the writ is or can be urged, it is suggested that petitioner having been tried at a time when the court was legally in session, the decision and judgment of this court should not operate as an unqualified discharge.

With this suggestion we cannot agree. In the case of Collins v. State, 24 Okla. Cr. 117, 217 P. 896, this court held:

"In the absence of a statute to the contrary, judgment need not necessarily be pronounced at the same term of court at which the verdict or plea of guilty was had, and if the court's purpose in postponing judgment and sentence is incident to the administration of justice within its conceded powers, and its orders postponing judgment and sentence are unconditional and to definite periods, the jurisdiction of the court to pronounce judgment and sentence at a term after the trial term is not affected."

Held further:

"While the court may delay pronouncing judgment for the purpose of hearing and determining motions for new trial or in arrest of judgment, or for other proper causes, it cannot indefinitely suspend pronouncing judgment and sentence."

It appears that seventeen March terms of said court, Okmulgee division, have passed since the jury rendered its verdict, and no unconditional or other order postponing judgment and sentence was made at any succeeding term. This we think a practical abandonment of the prosecution.

In the recent case of Bowen v. Johnston, Warden, 306 U.S. 19, 59 S. Ct. 442, 444, 83 L. Ed. 455, Mr. Chief Justice Hughes, delivering the opinion of the Supreme Court of the United States, said:

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"The scope of review on habeas corpus is limited to the examination of the jurisdiction of the court whose judgment of conviction is challenged.* * *

"But if it be found that the court had no jurisdiction to try the petitioner, or that in its proceedings his constitutional rights have been denied, the remedy of habeas corpus is available. * * *

"It must never be forgotten that the writ of habeas corpus is the precious safeguard of personal liberty and there is no higher duty than to maintain it unimpaired. Ex parte Lange [18 Wall. 163, 21 L. Ed. 872], supra."

In Ex parte Davis, 66 Okla. Cr. 271, 91 P.2d 799, 800, this court held:

"Where one is held in custody under void order of commitment or is imprisoned without due process of law under sentence of any court of the state, the Criminal Court of Appeals has the duty on habeas corpus to inquire into the illegality of the commitment."

In Ex parte Grant, 32 Okla. Cr. 217, 240 P. 759, 760, we said:

"The office of the writ of habeas corpus is to afford the citizen a speedy and effective method of securing his release when illegally restrained of his liberty. Its scope, when directed to an inquiry into the cause of imprisonment in judicial proceedings, extends to questions affecting the jurisdiction of the court and the sufficiency in point of law of the proceedings. Mere errors or irregularities in a judgment or proceeding of a court under and by virtue of which a person is imprisoned, which are not of such a character as to render the proceedings void, cannot be reviewed on an application for a writ of habeas corpus. Where a prisoner in custody under sentence of conviction seeks to be discharged on habeas corpus, the inquiry is limited to the questions whether the court in which the prisoner was convicted had jurisdiction of the person of the defendant and of the crime charged, and did the court have jurisdiction to render the particular judgment." Ex parte Owens, 37 Okla. Cr. 118, 258 P. 758; Ex parte Wagner, 58 Okla. Cr. 161, 50 P.2d 1135, 1137.

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It follows from the foregoing review that petitioner is unlawfully imprisoned and restrained of his liberty, and that he is entitled to be discharged from the imprisonment of which he complains. He is therefore by the judgment of this court discharged therefrom.