Ex parte Barnett

Annotate this Case

Ex parte Barnett
1939 OK CR 117
94 P.2d 18
67 Okl.Cr. 300
Decided: 09/15/1939
Oklahoma Court of Criminal Appeals

(Syllabus.)

1. Trial-Right to Fair Trial-Duty of Courts. Every person charged with crime, whether guilty or innocent, is entitled to a fair and impartial trial according to the due and orderly course of the law, and it is the duty resting upon the courts to see that the guaranty of such a trial, conferred by the laws upon every citizen, shall be upheld and sustained.

2. Same-Constitutional Right to Consult With Counsel and to Be Advised as to Rights Before Plea to Indictment or Information. Under Bill of Rights, sec. 20, Okla. St. Ann. Const., an accused has the right to consult with counsel and to be fully advised as to his rights, and as to the consequences of his act before entering his plea to the indictment or information.

3.Arraignment and Pleas-Safeguards Surrounding Plea of Guilty. A plea of guilty should be entirely voluntary, and should be made by one competent to know the consequences thereof , and should not be accepted until after the defendant has been fully advised by the court of his rights and the consequences of his plea.

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4. Habeas Corpus-Scope of Inquiry-Discharge of Person Held in Custody Under Void Order of Commitment. When a person is held in custody under void order of commitment, or is imprisoned without due process of law under the sentence of any court of the state, it is not only within the authority of this court, but it is its duty upon habeas corpus to inquire into the illegality of the commitment when the matter is properly brought before it by petition, and if it be adjudged that the order of commitment was made without authority of law, the person will be entitled to a discharge from custody in order to preserve the constitutional right of all persons not to be deprived of liberty without due process of law.

5. Same-Inquiry Into Jurisdiction of Court Rendering Judgment of Conviction. The scope of review on habeas corpus is limited to an examination of the jurisdiction of the court whose judgment of conviction is challenged.

6. Same-Denial of Constitutional Rights of Defendant. The remedy of habeas corpus is available wherever it is found that the court in which the petitioner was tried had no jurisdiction to try him, or that in its proceedings his constitutional rights were denied.

7. Trial-Waiver of Constitutional Right to Jury Trial, to Be Heard by Counsel, etc. A person prosecuted for a crime may waive the rights guaranteed to him by Bill of Rights relating to trial by jury, right to be heard by counsel, etc.

8. Same-"Waiver" Defined. A "waiver" is ordinarily an intentional relinquishment or abandonment of a known right or privilege.

9. Same-Presumption Against Waiver of Rights. Courts indulge every reasonable presumption against a waiver of fundamental constitutional rights, and do not presume acquiescence in their loss.

10. Same-Whether Right to Assistance of Counsel Waived Dependent Upon Particular Facts and Circumstances. Whether one accused of crime has waived his right to the assistance of counsel for his defense must depend in each case upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused.

11. Habeas Corpus-Remedy Where Accused Was Deprived of Right of Benefit of Counsel. Habeas corpus is an available

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remedy to one who has, without having effectively waived his constitutional right to the assistance of counsel, been convicted and sentenced and to whom expiration of time has rendered relief by an application for a new trial or by appeal unavailable.

12. Trial-Judgment of Conviction Void Where Accused Did not Have Benefit of Counsel and Did not Waive Right to Same. A judgment of conviction of one who did not effectively waive his constitutional right to the assistance of counsel for his defense is void as having been rendered without jurisdiction.

13. Same-Accused as Much Entitled to Assistance of Counsel in Preparing for Trial as at Trial Itself. One charged with crime is as much entitled to assistance of counsel in preparing for trial as at the trial itself.

14. Same-When Duty of Court in Felony Case to Assign Counsel for Poor Person Whether Requested or not. In a felony case, where the defendant is unable to employ counsel and is incapable adequately of making his own defense because of ignorance, feeble-mindedness, illiteracy, or the like, it is the duty of the court, whether requested or not to assign counsel for him as a necessary requisite of due process of law.

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

Ex parte proceeding by Lawrence L. Barnett for a writ of habeas corpus to be directed to Jess F. Dunn, Warden of the State Penitentiary. Writ granted.

Upon petition filed in behalf of Lawrence L. Barnett, now confined in the state penitentiary, alleging that he is unlawfully imprisoned and restrained of his liberty by the warden, Jess F. Dunn, and that he has been so restrained since June 11, 1934, a rule to show cause issued, directed to said warden, and made returnable July 25, 1939.

It appears both by the petition herein and the response to the rule to show cause, issued thereon, that

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petitioner was on June 11, 1934, by the judgment of the district court of Adair county, sentenced to confinement in the state penitentiary at McAlester for the term of 50 years, for the crime of attempt to rape. On the same day commitment issued and said petitioner was delivered and received at the state penitentiary on the following day:

The amended petition alleges:

"That he was arrested for the offense for which he is now serving a term in the state penitentiary under prison No. 29928, and was taken immediately before the county judge of Adair county on the 11th day of June, 1934, without any preliminary hearing or the hearing of any evidence except an affidavit of the wife of this petitioner and without being informed of any of his rights to counsel or time to plead his cause was immediately certified to the district court and that this petitioner was not represented by counsel or given an opportunity to procure counsel in the hearing before the county judge. 

"That immediately after the county judge held this petitioner for trial in the district court the petitioner was taken before the district judge and was there sentenced by the district judge to a term of fifty (50) years imprisonment in the state penitentiary. That the district judge did not ask this petitioner if he desired to be represented by counsel and did not inform him of his constitutional rights to be represented by counsel and of the time to which this petitioner was entitled in which to plead. This petitioner further shows to the court that he was never furnished a copy of the information and that he was not represented by counsel in the district court and when he first saw the information, except that he may have seen it while the county attorney was reading it at the time the sentence was pronounced against him, was about three years after he was in prison at the state penitentiary at McAlester. That he was not furnished a list of the witnesses and did not know who the witnesses against him would be until he procured a copy of the information having an endorsement of the witnesses thereon.

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"Petitioner further says that he was not sentenced by the district judge in the court room of the county of Adair but was sentenced in an office and that there was no formal opening of the court before the pronouncement of the sentence.

"This petitioner further shows to the court that he was made no promises by the county attorney, but that when the sheriff arrested him he took him to a private room in the county jail and stated to the petitioner that he had no money with which to employ counsel and that if he plead not guilty he would probably lay in the jail as mulch as a year before he could get a trial and that he would not be furnished an attorney and that if he would plead guilty he could start serving his sentence immediately and would be putting in the time that he would serve in the jail in serving his sentence and that after the defendant agreed to plead guilty he took the defendant before the county judge and county attorney and represented the petitioner in stating that the defendant was ready to plead guilty and the county judge then made the order committing him to the district court for trial upon the mere statement that if he had it in his power that he would send him to the electric chair."

The information set forth in the petition is as follows:

"State of Oklahoma v. Lawrence L. Barnett, Defendant.

"In the District Court Adair County, Oklahoma.

"In the name and by the Authority of the State of Oklahoma:
"Now comes E. G. Carroll the duly qualified and acting county attorney, in and for Adair county, state of Oklahoma, and gives the district court of Adair county, state of Oklahoma to know and be informed that Lawrence L. Barnett did, in Adair county, and in the state of Oklahoma, on or about the 10th day of May, in the year of our Lord one thousand nine hundred and thirty-four and anterior to the presentment hereof, commit the crime of attempt to rape in the manner and from as follows to wit: That on the day and year last aforesaid, in the county and state aforesaid, the defendant did then and there attempt to have sexual intercourse with one

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Jewell Barnett, a female child, about ten years old, she, the said Jewell Barnett not being the wife of the defendant, by then and there taking hold of said Jewell Barnett, and by then and there attempting to enter her female organ with his male organ, contrary to the form of the statutes, in such case made and provided, and against the peace and dignity of the state of Oklahoma.

"E. G. Carroll, County Attorney

"By (signed) Pete Helton,

"Acting Co. Atty.

"State of Oklahoma, County of Adair---ss.:

"I, Pete Helton, being duly sworn, on oath state, that I have read the above and foregoing information and know the contents thereof and that the facts stated therein are true.

"(Signed) Pete Helton

"Subscribed and sworn to before me, this 11th day of June, 1934.

"(Seal) J. M. Lynch, County Judge."

And has the following endorsements:

No. 114

State of Oklahoma v. Lawrence L. Barnett

Information. In the Dist. Court of Adair County, Oklahoma. Filed 6-11-34

G. R. Dannenberg, Court Clerk.

R. I. R. No. 2-P.57.

Names of Witnesses: Jovan Barnett, Jewell Barnett, J. W. Ferguson, Bill Barker, Herbert Barnett.

And concludes as follows:

"Wherefore, your petitioner prays this Honorable Court for a writ of habeas corpus, and an order and judgment directing the said warden of said state penitentiary to discharge the petitioner from said penitentiary and grant him his liberty immediately and without delay.

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"The writ of habeas corpus was denied by the District Court of Pittsburg County, Oklahoma before the filing of this petition.

"W. N. Redwine,

"Hulsey & Hulsey,

"Attorneys for petitioner."

Said petition is subscribed and sworn to by said petitioner.

The Attorney General's response on behalf of the respondent and the state concludes as follows:

"That the certified copy ('Exhibit A') of the aforementioned Journal Entry of the judgment and sentence of said District court of Adair county, Oklahoma, is the warrant and authority for and under which he, the said Lawrence L. Barnett, is now being held and imprisoned in said Oklahoma state penitentiary.

"For further response to the Rule to show cause herein, respondent says that the petition and application on file does not state facts sufficient to warrant the release and discharge of the petitioner as prayed for therein, or to show that said petitioner is entitled to be released or discharged from further retention and imprisonment in the Oklahoma state penitentiary.

"Respondent attaches hereto a Brief upon the legal questions involved.

"Dated this 25th day of July, 1939."

Attached to said response is a duly certified copy of the appearance docket, the minute record kept by the court clerk of Adair county, and proceedings had before J. A. Minton, Pardon and Parole Attorney, at Stilwell on July 31, 1939, including affidavits relative to the application of Lawrence L. Barnett, for writ of habeas corpus, which appear in the following order:

"County Court Appearance Docket

"No. 2162 The State of Oklahoma v. Lawrence L. Barnett
"1934
"June 11 Complaint
"June 11 Warrant Issued

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"County Court Minute Record

"1-11-35
"No. 2162 State v. Barnett
"Dismissed
"District Court Appearance Docket
"No. 1114 State of Oklahoma v. Lawrence L. Barnett
"1934
"June 11 Information
"June 11 Commitment Issued
"1938
"Apr. 16 Commitment returned and filed

"In witness whereof I have hereunto set my hand and official seal of office this the 31st day of July, 1939.

"(Signed) G. R. Dannenberger

"(Seal) Court Clerk"

"Criminal Complaint-Justice Court

"State of Oklahoma, Adair County-ss.:

"Before me Joe M. Lynch, County Judge, within and for said County of Adair, in said state, personally appeared Bill Baker, who, being duly sworn, upon his oath, says: That on or about the 10th day of May, 1934, in said county, Lawrence Barnett in the county and state aforesaid did unlawfully, wrongfully, intentionally by force and violence rape and carnally know Jewell Barnett a female child of the age of 10 years not then and there the wife of said Lawrence Barnett against the peace and dignity of the state of Oklahoma, wherefore affiant prays that a warrant may issue for the arrest of said Lawrence Barnett that he may be dealt with according to law.

"Bill Baker

"Subscribed and sworn to before me this 10th day of June, 1934.

"Joe M. Lynch, Co. Judge."

"(Seal)

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Endorsed:

"I have examined the facts in this case and recommend that a warrant do issue and that the following witnesses be subpoenaed on the part of the State Jewel Barnett, Joan Barnett, Herbert Barnett, Dr. R. M. Church, J. W. Ferguson, Bill Baker.

"Pete Helton, acting

"County Attorney.

"No. 2162

"Filed 6-11-34

"G. R. Dannenberg

"Court Clerk."

"Judgment and Sentence on Plea of Guilty.

"In District Court

"State of Oklahoma, Adair County-ss.:

"Be it remembered, that on the 11th day of June, A. D. 1934, the same being one of the days of the March 1934 Term of the district court of Adair county, state of Oklahoma, there being present Honorable W. A. Woodruff, Judge, Bill Baker, sheriff, and G. R. Dannenberg, clerk, and public proclamation of the opening of said court having been made, the following among other proceedings were had:

"The State of Oklahoma v. Lawrence L. Barnett, Defendant. No. 1114.

"The prisoner, the above named Lawrence L. Barnett, defendant, being personally present in open court, and having been legally (a) informed against, for the crime of attempt to rape, and arraigned, and said defendant having entered herein his plea of guilty, as charged in said Information, and being asked by the court if he had any legal cause to show why judgment and sentence should not be pronounced against ----, and he giving no good reason in bar thereof :

"It is therefore considered, ordered, adjudged and decreed by the court that the said Lawrence L. Barnett, be confined in the state penitentiary at McAlester, in the state of Oklahoma, for the term of fifty years, for said crime by ---- committed, said term of sentence to

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begin at and from the date of delivery to warden ----19--, and that said defendant pay the costs of this prosecution, taxed at $---, for which execution is awarded.

"It is further ordered, adjudged and decreed by the court that the sheriff of Adair county, state of Oklahoma, transport said Lawrence L. Barnett, to the said penitentiary at McAlester, in the state of Oklahoma, and that the warden of said penitentiary do confine and imprison the said Lawrence L. Barnett, in accordance with this judgment, and that the clerk of this court do immediately certify, under the seal of the court and deliver to the sheriff aforesaid two copies of this judgment, one of said copies to accompany the body of said defendant to said penitentiary and to be left therewith at said penitentiary said copy to be warrant and authority for the imprisonment of said defendant in penitentiary, and the other copy to be the warrant and authority of said sheriff for the transportation and imprisonment of the said defendant as hereinbefore provided. Said last named copy to be returned to the Clerk of said court with the proceedings of said sheriff thereunder endorsed thereon. And thereupon the court notified the defendant of his right to appeal.

"Done in open court this 11th day of June, 1934.

"(Signed) W. A. Woodruff, Judge."

"State of Oklahoma, County of Adair----ss.:

"I, J. W. Ferguson, of lawful age, first upon oath being duly sworn depose and state as follows, to wit:

"That I am at the present time the duly elected, qualified and acting sheriff of Adair County, Oklahoma; that on the 10th day of June, 1934, I was the undersheriff of Adair county, state of Oklahoma. That I am personally acquainted with Lawrence L. Barnett and was the arresting officer wherein the said Lawrence L. Barnett was arrested for the crime of attempt to rape, and duly filed on in the district court of Adair county in case No. 1114, and relate the following facts relative and incident to the arrest and plea of guilty of the said Lawrence L. Barnett:

"I went back after that and arrested him and brought him in and took him upstairs. I did not talk to him

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until the next morning. What I mean by 'upstairs' is in the county jail. The next morning he came down and talked to the county judge and told him he was guilty and said he wanted to get rid of it as soon as he could. That he had that desire and he could not help it and that he tried to get money enough to have the needle used on him, but he could not do it and said he wanted to plead guilty and asked me what I thought he would get and I told him I had no idea. I don't recall if he pleaded guilty before the county judge or waived preliminary hearing, but at any rate it was sent up to the district court. I informed Mr. Helton about it and he filed the information and he told him he wanted to plead guilty. That he did not have any money to get a lawyer with and there was no use fooling around here in jail. He sent the papers on up to the district court and informed Judge Woodruff what he wanted to do and as soon as he got ready for him I would take him down there. Judge Woodruff informed him of his rights and told him he could get a lawyer. He said he wanted to plead guilty. After he plead guilty I handled the commitment and a little later I took him to the penitentiary.

"Question by Mr. Watts. Q. Did you state to Lawrence L. Barnett that if he did not plead guilty he would probably lay in jail as much as a year before he would get a trial? A. No, sir. Q. Do you know whether or not Barnett waived his right to a preliminary hearing when he appeared before the county judge? A. Yes, sir, he did. Q. After the said Barnett was filed upon in the district court, do you know whether or not the Hon. W. A. Woodruff, district judge, on the 11th day of June, 1934, informed the said Barnett of his right to be represented by counsel prior to the time that the said Barnett entered his plea of guilty? A. Yes, sir, he did. Q. Did you, as undersheriff of Adair county, hold out any inducement or make any promises to the said Barnett to influence him in any way, shape, manner or form to plead guilty? A. I did not. He did not need any promises, he said he was guilty right in the beginning. Q. From what information you have about this case, do you believe that the said Barnett deserves, at this time, executive clemency? A. No, sir, he does not. Q. Mr. Ferguson, do you know whether or not any other public official of Adair county, or the state of Oklahoma, made any promises or held out

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any inducement to the said Lawrence L. Barnett in order to obtain a plea of guilty from him? A. They did not. The only time he was brought out of jail was when I brought him out and that was before Judge Lynch and Judge Woodruff here and I was present all the time. They were the only two officials who talked to him outside of myself. Q. Mr. Ferguson, in your investigation of this matter, did you find any evidence which would indicate that Jewell Barnett, the daughter of Lawrence L. Barnett, had been promiscuous or had had intercourse with any individual other than her father, the said Lawrence L. Barnett? A. No, sir. Q. Mr. Ferguson, how long had you known Lawrence L. Barnett prior to June 11, 1934? A. Well, I don't know just exactly, but probably six months. He lived around here in town awhile. Q. From your acquaintance and observation of Lawrence L. Barnett, do you know of any abnormal or deranged condition existing in the mind of said Lawrence L. Barnett? A. No, sir, I do not know of any. Q. How many times have you had occasion to see Lawrence L. Barnett since June 11, 1934? A. I couldn't tell you exactly. Probably a dozen times or more. Q. In your best judgment, was Lawrence L. Barnett at the time you last saw him in the same mental condition, insofar as any abnormalities of the mind are concerned, in the same condition as he was on June 11, 1934? A. Yes, sir. I can't tell any difference. Q. When did you last see Lawrence L. Barnett? A. It has probably been a month.

"J. W. Ferguson."

"Subscribed and sworn to before me this the 1st day of August, 1939.

"G. R. Dennenberg,

"Court Clerk in and for the County of Adair, State of Oklahoma."

"State of Oklahoma, County of Adair-ss.:

"I, W. A. Woodruff, of lawful age, first on oath being duly sworn depose and state:

"That I am a resident of Stilwell, Okla., and a practicing attorney at this time of the Bar of Oklahoma and that on the 11th day of June, 1934, I was the duly elected,

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qualified and acting district judge of the First Judicial District (at that time) of the state of Oklahoma and that I am personally acquainted with Lawrence L. Barnett, who was the defendant in case No. 1114 in the district court of Adair county, Oklahoma, styled 'State of Oklahoma v. Lawrence L. Barnett' and sentenced the said Barnett to a term of 50 years in the Oklahoma state penitentiary on his plea of guilty to the crime of attempt to rape, and relate the following facts and circumstances relative to the procedure which took place in the district court:

"I had known Lawrence L. Barnett for some comparatively short time prior to the date of sentence. That is, some several months and less than a year. During 1934 my home was at Stilwell and I had chambers in the Adair county courthouse at Stilwell where Barnett had, on a number of occasions, called in an effort to obtain help and assistance in various ways. He told me of his family and living conditions and sought either direct assistance or help from Adair county.

"Prior to him being brought before me I had heard of the alleged offense through some Adair county officers, whose names I do not now recall. When Mr. Barnett was brought before me there was present Mr. Pete Helton, acting county attorney of Adair county and J. W. Ferguson, undersheriff of Adair county.

"Realizing the seriousness of the charge, I was interested in seeing that the defendant was fully informed and advised of his rights. I distinctly recall that Mr. Helton read the information to the defendant. I then inquired if he was represented by an attorney and he told me that he was not. He had none. I informed him of his right to have counsel if he so desired and told him further that if he was unable to employ counsel that the court would appoint counsel to represent him. He informed me that he did not desire an attorney. I further informed him that he did not have to enter a plea at that time. That he had a right to defer entering a plea until a further date if he so desired and impressed upon him the seriousness of the charge so that he could take further time to consider the matter if he so desired.

"He stated to me that he was fully aware of what he had done and he desired no further time for any

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purpose. Before passing sentence I tried to inform him of all of his constitutional rights and believe that I did. Before passing of sentence I discussed with him the alleged acts and he not only related to me his acts with the child named in the information, but went on to make an explanation that he had had, for some time, intercourse with another of his daughters, and then to explain that from certain passages in the Bible that some men were born with such natures that they were not responsible for acts similar to that with which he was charged. I am quite confident that before the passing of sentence and during the time that he was in my presence from 30 minutes to an hour expired. He was perfectly calm, not in any manner agitated and appeared as normal as on the number of occasions when he had been at my office prior to that time.

"The sentence was not passed in the large courtroom where jury trials were usually held, but in a room adjoining thereto where all matters were disposed of when jury sessions were not held. At the time the court was duly opened prior to sentence. During the time that Mr. Parnett was in my presence there was nothing at all to indicate that he was in any way being coerced or unduly influenced.

"Questioned by Mr. Watts. Q. Judge Woodruff, do you feel at this time that Lawrence L. Barnett is deserving of executive clemency? A. No, sir, and I might add I make this answer not because it is Lawrence L. Barnett, as I never had any personal ill feeling toward him, but that answer is based upon the nature of the offense. There is no question at all in my mind about the actual guilt of the defendant perpetrating the alleged acts upon his own child. Without any doubt about it, I do not feel he is entitled to any clemency. Q. Judge Woodruff, did you observe anything at the time of sentence which would indicate to you that Lawrence L. Barnett was in a deranged or abnormal mental condition? A. No, sir, and that is part of the reason that I stated in the beginning that I had known him a number of months and he had been in my office, and seemed just as normal and just as nonagitated as he had at any time when he was in no trouble at all.

W. A. Woodruff

"(Seal)

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"Subscribed and sworn to before me this the 1st day of August, 1939.

"G. R. Dannenberg,

"Court Clerk in and for the County of Adair, State of Oklahoma.

"State of Oklahoma, County of Adair-ss.:

"I, E. G. Carroll, of lawful age, first on oath being duly sworn deposes and state:

"That I am at present the duly elected, qualified and acting County Attorney of Adair County, State of Oklahoma, and was the County Attorney of Adair County on June 11, 1934, but at that time was beyond the bounds of Adair County and Pete Helton was acting as substitute County Attorney of Adair County, Oklahoma.

"That I knew of the plea of guilty and the sentence of Lawrence L. Barnett and was acquainted with certain of the facts relative to his case.

"That I do not feel at this time that the said Lawrence L. Barnett is deserving of executive clemency.

"(Seal) E. G. Carroll.

"Subscribed and sworn to before me this the 1st day of August, 1939.

"G. R. Dannenberg,

"Court Clerk in and for the County of Adair, State of Oklahoma."

"State of Oklahoma, County of Adair-ss.:

"I, Pete Helton, of lawful age, first on oath being duly sworn depose and state:

"That I am a practicing attorney of the State Bar of Oklahoma, and a resident of Stilwell, Oklahoma.

"That on the 11th day of June 1934, I was the acting and substitute County Attorney of Adair county, Oklahoma, and appeared as representative of Adair county, state of Oklahoma, in the case of State of Oklahoma v. Lawrence L. Barnett, Case No. 2162 on the docket of the

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county court of Adair county, Oklahoma, and Case No. 1114 on the docket of the district court of Adair county, Oklahoma, and state the following facts and circumstances relative to my action in connection with said case:

"At that time I was acting county attorney in the absence of Judge Carroll. This came on for investigation and I represented Judge Carroll in the prosecution. I prepared the preliminary complaint and information. It came up in the regular way and in both courts he plead guilty and desired an immediate sentence.

"Questioned by Mr. Watts. Q. Mr. Helton, did you hold out any inducement or make any promises to the defendant Lawrence L. Barnett relative to his plea of guilty? A. No, sir, I did not. Q. Did you advise the defendant of his right to be represented by counsel? A. Well I don't exactly remember but the courts advised him of that fact-that if he wanted an attorney they would appoint one to represent him, but he did not want any. Q. Were you present before Hon. Joe M. Lynch, county judge of Adair county, on June 11, 1934, when the defendant Barnett waived his right to a preliminary examination? A. Yes, sir. Q. Did you ever advise the defendant that it would be best for him to plead guilty, otherwise he would probably lay in jail as much as a year before he could get a trial? A. No, sir. Q. Did you hear J. W. Ferguson, undersheriff at that time, make any statement to the defendant relative to this proposition? A. No, sir, I did not. Q. Were you acquainted with Lawrence L. Barnett prior to June 11, 1934? A. I don't think I did. He had not been here long. Q. Did you ever hear any one state that the defendant was a man of abnormal or deranged mentality? A. No, I never heard anybody say anything about it. Q. Do you feel that the defendant, at this time, is deserving of executive clemency? A. No, sir, I do not. Q. Were you present in the district court at the time the Hon. W. A. Woodruff, district judge of Adair county, pronounced sentence upon the defendant? A. Yes, sir. Q. Do you recall whether or not Judge Woodruff advised the defendant of his right to be represented by counsel prior to the defendant entering his plea of guilt? A. Yes, sir, he advised him of that fact. Q. Do you recall that Judge Lynch also advised the defendant of his right to have counsel at the time he appeared in the county

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court of Adair county? A. Yes, sir, he did; I think he had a very fair and impartial hearing. There was nobody with any ill feeling against him, and no prejudice and he was just sentenced on his own statement of his guilt. Q. Do you feel the judgment and sentence is commensurate with the crime committed? A. Well, I don't think it was out of line with the crime he was charged with and admitted he was guilty of.

"Pete Helton.

"Subscribed and sworn to before me this the 1st day of August, 1939.

"(Seal) G. R. Dannenberg,

"Court Clerk in and for the County of Adair, State of Oklahoma."

"State of Oklahoma, County of Adair-ss.:

"I, Joe M. Lynch, of lawful age, first on oath being duly sworn depose and state:

"That I am a practicing attorney of the State Bar of Oklahoma and that on the 11th day of June, 1934, I was the duly elected, qualified and acting county judge of Adair county, Oklahoma, and sat as the examining magistrate in the case of State of Oklahoma v. Lawrence L. Barnett, case No. 2162 in the county court of Adair county, Oklahoma, and state the following facts and circumstances relative to the hearing had on this case before the county court:

"On June 11, 1934, the defendant Lawrence L. Barnett was brought before me charged with the crime of attempt to rape and before anything was done I advised him of all of his legal rights, especially with reference to his being represented by an attorney. When he informed me he had no one representing him I offered to appoint someone to represent him before he made any statement relative to the charge, and he informed me he had no attorney and did not want an attorney. That he was going to enter a plea of guilty and he could not see that an attorney would be of any benefit to him.

"The charge was read to him and he entered a plea of guilty and I talked to him further about the case and

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he disclosed the fact he was not only guilty of having intercourse with the young girl mentioned in the information, but he had carried on the intercourse with another one of his children, possibly just a year or two older than the one mentioned in the information. His wife was present and she informed me that the charge in the information was true, that she had knowledge of the fact that he had been having intercourse with his own children for some time, and his daughter, I do not recall her name just now, informed me that the reason she was interested in something being done with her father at that time was that she had a younger sister coming along and there was no doubt in her mind that the same thing would happen to her as had happened to herself and sister.

"I made no promise whatsoever, neither did anyone else in my presence make any promises to the defendant Lawrence L. Barnett, but that he voluntarily, after having been advised of all of his constitutional rights and after the seriousness of the charge had been explained and discussed, including his plea of guilty, he further informed me that he would like to have a sentence just as quick as he could get it, and I informed him that the district court was on the other side of the building and that I presumed that any time he desired to go before the district court that the sentence would forthwith be meted out to him.

"During the hearing and after his wife informed me that she had known of her husband's conduct toward and with his own little daughter, I informed her in my opinion she should have a sentence along with her husband as she condoned such conduct, and instead of saying that if it was in my power I would send the defendant Barnett to the electric chair, I believe I told her I would like to send them both to the electric chair if it was in my power, and I have not changed my mind as to that yet.

"Questioned by Mr. Watts. Q. Judge Lynch, did you inform the defendant Barnett of his right to have a preliminary hearing and to be faced in open court with the witnesses who would testify against him? A. I did. Q. Did the defendant Barnett inform you that he desired to waive a preliminary examination or hearing? A. Yes, sir,

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and did waive it. Q. Judge Lynch, do you feel that the defendant Lawrence L. Barnett is deserving of executive clemency at this time? A. Emphatically not. Q. Did you know the defendant Barnett prior to June 11, 1934? A. No, sir, I don't believe I did. Don't believe I ever saw the man until he was brought into court.

"Joe M. Lynch.

"Subscribed and sworn to before me this the 1st day of August, 1939.

"(Seal) G. R. Dannenberg,

"Court Clerk in and for the County of Adair, State of Oklahoma."

"State of Oklahoma, County of Adair-ss.:

"Affidavit.

"I the undersigned, Orlando F. Sweet, after being first duly sworn depose and state as follows, to wit:

"During the years between 1923 and 1929 I was residing at Guymon, Okla., and was serving as the duly elected, qualified and acting county attorney of Texas county. During these years I knew one Lawrence L. Barnett, who resided in Guymon for at least a part of this time. He, at that time, had a wife and a rather large family. He was commonly known as 'Shorty' Barnett. He was not then regarded as being in any wise a criminal. The support of himself, his wife and family was somewhat of a community economic problem, but, as I remember, he was a good worker and would work when he could find anything to do. He spent some time in running a junk yard and hauling trash and doing other menial tasks. He was generally regarded in the community as being of a moron type, of low intelligence, not reaching the state, however, of being an idiot or an imbecile. He and his family lived in very sordid and poverty stricken surroundings, due to the large family that he had and his low earning capacity.

"I know nothing of the facts surrounding the charge in Adair county upon which he was sent to the penitentiary.

"Further affiant saith not.

"(Signed) Orlando F. Sweet.

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"Subscribed and sworn to before me Audean (?) Newton, a Notary Public, on this 3d day of August, 1939.

"(Signed) Audean (?) Newton,

"Notary Public.

"My commission expires:

"July 14, 1942.

"(Seal)"

On August 29th, the demurrer to the petition was overruled and the cause was submitted upon the petition, the answer thereto, and the respective briefs.

W. N. Redwine and Hulsey & Hulsey, all of McAlester, for petitioner.

Mac Q. Williamson, Atty. Gen., Owen J. Watts, Asst. Atty. Gen., and J. A. Minton, Pardon and Parole Atty., of Sayre, for respondent and the State.

DOYLE, P. J. The petitioner, Lawrence L. Barnett, now confined in the state penitentiary, alleges that he is unlawfully imprisoned and detained without authority of law, under a judgment of the district court of Adair county, rendered June 11, 1934, finding him guilty of the offense of attempt to rape, wherein he was sentenced to serve a term of 50 years' imprisonment.

Petitioner seeks his release upon the ground that it conclusively appears from the record that said district court did not have jurisdiction to render the judgment, in that he was denied constitutional rights guaranteed to him by the Constitution and the laws of the state, wherefore petitioner was deprived of his liberty without due process of law.

The prosecution was based upon section 2515, 21 Okla. St. Ann. § 1111, which provides:

"Rape is an act of sexual intercourse accomplished with a female, not the wife of the perpetrator, under either of the following circumstances: 1st. Where the female is under the age of 16 years."

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Section 2518, 21 Okla. St. Ann. § 1114, provides:

"Rape committed by a male over eighteen years upon a female under the age of fourteen years, is rape in the first degree."

Section 2519, 21 Okla. St. Ann. § 1115, provides:

"Rape in the first degree is punishable by death or imprisonment in the penitentiary, not less than 15 years."

It appears from the record that on June 11, 1934, a complaint was filed in the county court charging petitioner with rape in the first degree; on the same day an information was filed in the district court of Adair county, charging an offense denominated "Attempt to Rape," and on the same day the judgment and sentence of the court was rendered on his plea of guilty.

The respondent insists that under the statute, section 693, 12 Okla. St. Ann. § 1342, a writ of habeas corpus will not lie "upon any process issued on any final judgment of a court of competent jurisdiction"; that such judgment, valid on its face, is an unanswerable return to a writ of habeas corpus, issued for the relief of a prisoner imprisoned by virtue of such judgment.

The writ of habeas corpus, which has for centuries been esteemed the best and only sufficient defense of personal freedom, has for its object the speedy release by judicial decree of persons illegally restrained of their liberty.

It is not a mere corrective remedy and is not to be employed as a writ of quo warranto, nor as a writ of certiorari, nor permitted to perform the functions of an appeal.

The jurisdiction of the court to render a particular judgment by which a person is imprisoned, is a proper subject of inquiry on habeas corpus.

In the case Ex parte Grant, 32 Okla. Cr. 217, 240 P. 759, 760, it is said:

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"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."

In Ex parte Owens, 37 Okla. Cr. 118, 258 P. 758, 760, this court held:

"When a person is held in custody under a void order of commitment, or is imprisoned without due process of law under the sentence of any court of the state, it is not only within the authority of this court, but it is its duty upon habeas corpus to inquire into the illegality of the commitment when the matter is properly brought before it by petition, and if it be adjudged that the order of commitment was made without authority of law, the person will be entitled to a discharge from custody in order to preserve the constitutional right of all persons not to be deprived of liberty without due process of law."

It follows that the question to be determined, is, Did the district court of Adair county have jurisdiction to render the judgment upon the petitioner's plea of guilty.

It is contended that petitioner was deprived in the preliminary hearing before the judge of the county court, acting as an examining magistrate, and before the district court that rendered the judgment, of his constitutional and statutory right of the benefit of counsel, and that the record does not show that the petitioner waived this right.

In the Bill of Rights, Okla. St. Ann. Const., are these provisions:

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"§ 7. No person shall be deprived of life, liberty, or property, without due process of law."

"§ 17. No person shall be prosecuted for a felony by information without having had a preliminary examination before an examining magistrate, or having waived such preliminary examination."

"§ 20. In all criminal prosecutions the accused shall be informed of the nature and cause of the accusation against him and have a copy thereof, and be confronted with the witnesses against him, and have compulsory process for obtaining witnesses in his behalf. He shall have the right to be heard by himself and counsel; and in capital cases, at least two days before the case is called for trial, he shall be furnished with a list of the witnesses that will be called in chief, to prove the allegations of the indictment or information, together with their postoffice addresses."

In the Code of Criminal Procedure are these provisions:

"When the defendant is brought before a magistrate upon an arrest, either with or without a warrant, on a charge of having committed a public offense, the magistrate must immediately inform him of the charge against him, and of his right to the aid of counsel in every stage of the proceedings, and also of his right to waive an examination, before any further proceedings are had." Sec. 2793, 22 Okla. St. Ann. § 251.

"He must also allow to the defendant a reasonable time to send for counsel, and adjourn the examination for that purpose; and must, upon the request of the defendant, require a peace officer to take a message to such counsel in the county or city as the defendant may name. The officer must, without delay, perform that duty, and shall receive fees therefor as upon a service of a subpoena." Sec. 2794, 22 Okla. St. Ann. § 252.

"If the defendant appear for arraignment, without counsel, he must be informed by the court that it is his right to have counsel before being arraigned, and must be asked if he desire the aid of counsel. If he desires, and is unable to employ counsel, the court must assign counsel to defend him." Sec. 2929, 22 Okla. St. Ann. § 464.

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"If, on the arraignment, the defendant require it, he must be allowed until the next day, or such further time may be allowed him as the court may deem reasonable, to answer the indictment or information." Sec. 2935, 22 Okla. St. Ann. § 491.

"After a plea or verdict of guilty, * * * the court must appoint a time for pronouncing judgment." Sec. 3125, 22 Okla. St. Ann. § 961.

"The time appointed must be at least two days after the verdict, if the court intend to remain in session so long; or, if not, at as remote a time as can reasonably be allowed." Sec. 3126, 22 Okla. St. Ann. § 962.

"When the defendant appears for judgment, he must be informed by the court, or by the clerk under its direction, of the nature of the indictment or information, and his plea and the verdict, if any thereon, and must be asked whether he has any legal cause to show why judgment should not be pronounced against him." Sec. 3134, 22 Okla. St. Ann. § 970.

A plain reading of these provisions is conclusive of the questions presented and it is not shown by the record that these requirements of the Constitution and statutes were complied with. It is apparent from the record that petitioner was not sufficiently advised of his rights by the committing magistrate, or by the district judge.

In Goben v. State, 20 Okla. Cr. 220, 201 P. 812, 815, it is said:

"The right of the accused to the assistance of counsel in making his defense has long been regarded in this country as essential to the due administration of justice in criminal cases. Says Mr. Cooley:

" 'With us it is a universal principle of constitutional law that the prisoner shall be allowed a defense by counsel.' Const. Lim. 334."

In Polk v. State, 26 Okla. Cr. 283, 224 P. 194, this court held:

"A plea of guilty should be entirely voluntary, by one competent to know the consequences, and should not be induced by fear, persuasion, promises, or ignorance."

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And held:

"A plea of guilty should not be entered until after the defendant has been fully advised by the court of his rights and the consequences of his plea."

In Powell v. Alabama, 287 U.S. 45, 53 S. Ct. 55, 64, 77 L. Ed. 158, 84 A.L.R. 527, headnotes 10 and 11, are as follows:

"In a capital case, where the defendant is unable to employ counsel and is incapable adequately of making his own defense because of ignorance, feeble-mindedness, illiteracy, or the like, it is the duty of the court, whether requested or not, to assign counsel for him as a necessary requisite of due process of law; and that duty is not discharged by an assignment at such a time or under such circumstances as to preclude the giving of effective aid in the preparation and trial of the case."

"A court has power, even in the absence of a statute, to appoint counsel to defend one charged with crime."

Mr. Justice Sutherland delivering the opinion of the court said:

"The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with crime, he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel he may be put on trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defense, even though he have a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence. If that be true of men of intelligence, how much more true is it of the ignorant and illiterate, or those of feeble intellect. If in any case, civil or criminal, a state or federal court were arbitrarily to refuse to hear a party

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by counsel, employed by and appearing f or him, it reasonably may not be doubted that such a refusal would be a denial of a hearing, and, therefore, of due process in the constitutional sense."

In this connection we desire to quote fully from the opinion delivered by Mr. Justice Black for the Supreme Court of the United States, in the case of Johnson v. Zerbst, 304 U.S. 458, 58 S. Ct. 1019, 1023, 82 L. Ed. 1461:

"The purpose of the constitutional guaranty of a right to counsel is to protect an accused from conviction resulting from his own ignorance of his legal and constitutional rights, and the guaranty would be nullified by a determination that an accused's ignorant failure to claim his rights removes the protection of the Constitution. True, habeas corpus cannot be used as a means of reviewing errors of law and irregularities-not involving the question of jurisdiction-occurring during the course of trial; and the 'writ of habeas corpus cannot be used as a writ of error.' These principles, however, must be construed and applied so as to preserve-not destroy--constitutional safeguards of human life and liberty. The scope of inquiry in habeas corpus proceedings has been broadened-not narrowed-since the adoption of the Sixth Amendment, [U.S.C.A. Const.]. In such a proceeding, 'it would be clearly erroneous to confine the inquiry to the proceedings and judgment of the trial court' and the petitioned court has 'power to inquire with regard to the jurisdiction of the inferior court, either in respect to the subject matter or to the person, even if such inquiry (involves) an examination of facts outside of, but not inconsistent with, the record.' Congress has expanded the rights of a petitioner for habeas corpus and the '* * * effect is to substitute for the bare legal review that seems to have been the limit of judicial authority under the common-law practice, and under the Act of 31 Car. II, chap. 2, a more searching investigation, in which the applicant is put upon his oath to set forth the truth of the matter respecting the causes of his detention, and the court, upon determining the actual facts, is to "dispose of the party as law and justice require."

"'There being no doubt of the authority of the Congress to thus liberalize the common-law procedure on

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habeas corpus in order to safeguard the liberty of all persons within the jurisdiction of the United States against infringement through any violation of the Constitution or a law or treaty established thereunder, it results that under the sections cited a prisoner in custody pursuant to the final judgment of a state court of criminal jurisdiction may have a judicial inquiry in a court of the United States into the very truth and substance of the causes of his detention, although it may become necessary to look behind and beyond the record of his conviction to a sufficient extent to test the jurisdiction of the state court to proceed to judgment against him.

"* * * it is open to the courts of the United States, upon an application for a writ of habeas corpus, to look beyond forms and inquire into the very substance of the matter.

* * *

"Of the contention that the law provides no effective remedy for such a deprivation of rights affecting life and liberty it may well be said-as in Mooney v. Holohan, 294 U.S. 103, 113, 55 S. Ct. 340, 79 L. Ed. 791, 794, 98 A.L.R. 406-that it 'falls with the premise.' To deprive a citizen of his only effective remedy would not only be contrary to the 'rudimentary demands of justice' but destructive of a constitutional guaranty specifically designed to prevent injustice.

"Since the Sixth Amendment constitutionally entitles one charged with crime to the assistance of counsel, compliance with this constitutional mandate is an essential jurisdictional prerequisite to a federal court's authority to deprive an accused of his life or liberty.

"When this right is properly waived, the assistance of counsel is no longer a necessary element of the court's jurisdiction to proceed to conviction and sentence. If the accused, however, is not represented by counsel and has not competently and intelligently waived his constitutional right, the Sixth Amendment stands as a jurisdictional bar to a valid conviction and sentence depriving him of his life or his liberty. A court's jurisdiction at the beginning of trial may be lost 'in the course of the proceedings' due to failure to complete the court-as the

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Sixth Amendment requires-by providing counsel for an accused who is unable to obtain counsel, who has not intelligently waived this constitutional guaranty, and whose life or liberty is at stake. If this requirement of the Sixth Amendment is not complied with, the court no longer has jurisdiction to proceed. The judgment of conviction pronounced by a court without jurisdiction is void, and one imprisoned thereunder may obtain release by habeas corpus. A judge of the United States-to whom a petition for habeas corpus is addressed-should be alert to examine 'the facts for himself when if true as alleged they make the trial absolutely void.' "

In Howington v. State, 30 Okla. Cr. 243, 235 P. 931, this court held:

"A plea of guilty should be entirely voluntary, and should be made by one competent to know the consequences thereof, and should not be accepted until after the defendant has been fully advised by the court of his rights and the consequences of his plea."

In the opinion it is said:

"In cases of this kind, where the defendant is charged with a capital offense, he should have the advantage of every right which the law secures to him upon his trial. A fair and impartial administration of justice is one of the most sacred rights of the citizen, and it is the duty of the courts to see that the constitutional rights of the accused shall not be violated; however guilty he may be, he is entitled to a fair trial according to the due and orderly course of the law. * * *

"The state attempts to safeguard the life and liberty of citizens, and as one of the steps in that direction secures to them, if prosecuted for crime, the constitutional right to be heard by counsel, which includes the right of accused to consult with counsel at every stage of the proceedings, whether imprisoned or admitted to bail. Mullen v. State, 28 Okla. Cr. 218, 230 P. 285.

"The statute provides that where it appears that the defendant has no means and is unable to employ counsel, the court shall in all such cases appoint counsel, to represent him. Section 2929, C. S. 1921 (sec. 2930, St. 1931, 22

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Okla. St. Ann. § 1271). There can be little doubt, under the facts in this case, that the defendant was denied the right to be heard by counsel as guaranteed by the letter and the spirit of our state Constitution. There is nothing to show that the defendant waived this right. At the time he was brought before the court and arraigned, he had been given no opportunity to be advised by counsel as to his rights, or as to the consequences of any plea he might enter. The judge of the court asked him if he desired to have a lawyer, but the court did not tell him that he had a right to have an attorney, and the court did not inquire as to what means the defendant possessed by which he could employ a lawyer, and did not inform him that it was the duty of the court to appoint an attorney to appear for him in case he possessed no means to employ one. And the court did not direct any officer of the court to call a lawyer to consult with him, and made no offer to appoint an attorney for that purpose.

"Under the facts stated, the defendant cannot be held to have waived his constitutional right to be heard by counsel. If the defendant had been permitted to consult with counsel learned in the law before he was arraigned, he would have been informed as to his constitutional and statutory rights, and he would have been informed that he had a right to be tried by a jury of 12 men, whose duty it would be to decide the question of his guilt; that in case he was tried by a jury and found guilty of murder, the jury in its discretion would have the right to decide whether the penalty to be imposed should be death or imprisonment for life. He would have been told that he could not be required to give evidence against himself either as tending to show that he was guilty of the offense charged or as tending to show any aggravating circumstances to be considered in fixing his punishment. He would have been informed, also, that in case he pleaded guilty, such plea would be a judicial confession that he was guilty of murder and a waiver of his right to a trial by jury, and that the court would be authorized on the plea to find him guilty of murder without hearing other evidence. Mullen v. State, supra.

"Under the facts in this case, the court had no right to assume that the defendant was fully advised as to his

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rights, and as to the consequences of a plea of guilty. The defendant was young, ignorant, and inexperienced. Under such circumstances, the court was required to use caution in proportion to the gravity of the consequences. * * *

"It may be well to say here that it is as much the duty of prosecuting attorneys to see that a person on trial is not deprived of any of his constitutional rights, as it is to prosecute him for the crime with which he is charged. * * *

" 'The law travels with a leaden heel, but strikes with an iron hand,' is a maxim pregnant with obvious meaning. In this instance, it doffed the 'leaden heel,' yet struck with the iron hand."

In Sutton v. State, 35 Okla. Cr. 263, 250 P. 930, 934, it is said:

"It is true that many constitutional guaranties may be waived by an accused person who comes into court represented by counsel and being fully advised of all his rights, and in such cases it might be said that he waives a right for which he does not ask. However, the record in this case shows that appellant did not waive any constitutional or statutory right, except in so far as his plea of guilty waived his right to be tried by a jury. In our opinion the constitutional right to be represented by counsel and the right in capital cases, at least two days before the case is called for trial, to be furnished with a list of the witnesses, together with their post office addresses, are essential to due process of law guaranteed to the citizen by section 7, Bill of Rights. We are inclined to think that a conviction had by a denial of these constitutional rights simply amounts to judicial lynch law."

And see Ex parte Justus, 3 Okla. Cr. 111, 104 P. 933, 25 L. R. A., N. S., 483; Ex parte Rupert, 6 Okla. Cr. 90, 116 P. 350; Ex parte Hollingshead, 24 Okla. Cr. 131, 216 P. 486; Ex parte Lair, 29 Okla. Cr. 282, 233 P. 789; Ex parte Bonitz, 30 Okla. Cr. 45, 234 P. 780; Ex parte Dunn, 33 Okla. Cr. 190, 242 P. 574; Ex parte Hollins, 54 Okla. Cr. 70, 14 P.2d 243; Tipton v. State, 30 Okla. Cr.

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56, 235 P. 259; Lowrance v. State, 33 Okla. Cr. 71, 242 P. 862; Brown v. State, 39 Okla. Cr. 406, 266 P. 476.

We do not deem it necessary to discuss other questions presented by the record, as they have been fully considered in three cases cited. Goben v. State, Polk v. State, and Mullen v. State.

From all the foregoing considerations it is our opinion that petitioner's conviction in violation of rights guaranteed by the Bill of Rights, Const., art. 2, sec. 20, is a nullity.

It follows that petitioner is unlawfully restrained of his liberty and is imprisoned without due process of law. He is therefore by the judgment of this court discharged therefrom.