Ex parte Pike

Ex parte Pike
1931 OK CR 89
296 P. 529
50 Okl.Cr. 125
Decided: 02/28/1931
Oklahoma Court of Criminal Appeals

(Syllabus.)

1. Habeas Corpus Right to Writ Invalidity of Proceedings Attacked. The writ of habeas corpus is not intended to operate as a writ of error or certiorari, and cannot be substituted for an appeal. There must be illegality or irregularity sufficient to render the proceedings void.

2. Same Judgment not Rendered Void by Instructions Permitting Less Penalty Than Prescribed by Law. Where the court in its instructions submits to the jury a less penalty for the offense than that prescribed by law, but of the same kind, and the jury assesses, and the court in its judgment fixes a less penalty than that provided by law, such error does not divest the court of jurisdiction nor render the judgment void. Original application by Marion Pike for writ of habeas corpus. Writ denied. J.M. Roberts, for petitioner.

J. Berry King, Atty. Gen., for respondent.

EDWARDS, J. This is an original proceeding in habeas corpus. Petitioner alleges that he is unlawfully restrained by the warden of the penitentiary at McAlester; that, with others, in the district court of Craig county, he was charged with conjoint robbery alleged to have been committed July 19, 1923; that he was convicted, and in November, 1923, he was sentenced to serve a term of 15 years; that at the date of the crime alleged, the punishment fixed by law (chapter 85, Sess. Laws 1923) was a minimum of 25 years; that, a sentence of 15 years being contrary to law, the restraint of petitioner is illegal.

It is well settled that the writ of habeas corpus cannot be used to perform the office of an appeal. It is limited to cases in which the judgment and sentence attacked is clearly void. Ex parte Dunn, 33 Okla. Cr. 190, 242 P. 574;

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Ex parte Hollingshead, 24 Okla. Cr. 131, 216 P. 486; Ex parte King, 41 Okla. Cr. 241, 272 P. 389. Where petitioner is imprisoned on a judgment of conviction for crime upon a final judgment of a court of competent jurisdiction, this court in habeas corpus will not look to the record further than to ascertain if the court had jurisdiction, and, if so, if in the course of the proceedings it lost jurisdiction. Mere errors or irregularities, however numerous and gross, committed during the trial, which render a judgment voidable merely, cannot be corrected by habeas corpus. Ex parte Lyde, 17 Okla. Cr. 618, 191 P. 606; Ex parte Barnette, 29 Okla. Cr. 80, 232 P. 456.

Chapter 85, Sess. Laws 1923, fixed the punishment for robbery at a minimum of 25 years. It was error for the trial court to instruct the jury that they might assess a less punishment. This error, however, did not divest the court of jurisdiction. Cornett v. State, 40 Okla. Cr. 172, 267 P. 869; Patterson v. State, 44 Okla. Cr. 298, 280 P. 862.