Ex parte Field

Ex parte Field
1941 OK CR 168
119 P.2d 864
73 Okl.Cr. 225
Decided: 12/03/1941
Oklahoma Court of Criminal Appeals

(Syllabus.)

1. Habeas Corpus-Necessary to Show Information Void Where Defects Alleged. Before one can be released from the State Penitentiary by writ of habeas corpus, by reason of a defect in the information, it is necessary to show that the same was void.

2. Same-Burden on Petitioner to Prove Material Allegations Denied by Response of Attorney General for Warden. One filing a petition for writ of habeas corpus has the burden of proving the allegations of his petition where the Attorney General files a response for the warden denying each and every material allegation set forth.

Proceeding in the matter of petition by Eugene Field for writ of habeas corpus for release from confinement under conviction of robbery with firearms. Petition denied.

Ellmore Pinnick, of Oklahoma City, for petitioner.

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

BAREFOOT, P. J. Petitioner, Eugene Field, has

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filed an application for writ of habeas corpus alleging that he is confined in the State Penitentiary at McAlester; that said confinement is by reason of a judgment and sentence entered in the district court of Comanche county on the 20th day of July, 1933, sentencing him to serve a life sentence on a plea of guilty to a charge of robbery with firearms. There is attached to the petition a copy of the information filed in Comanche county, the judgment and sentence, and a copy of defendant's prison record.

To this petition the Attorney General, on behalf of the warden of the penitentiary, has filed a response denying each and every material allegation in said petition set forth. It is contended by petitioner that the information filed in the district court of Comanche county was void; that said information only charged an assault with intent to kill and that said information is so "vague, indefinite and uncertain that it fails to charge an offense against the laws of the State of Oklahoma."

We have examined the information, a copy of which is attached to the petition, and find that the same properly charges petitioner with the crime of robbery with firearms, all the elements of said offense being properly stated in said information.

It is further alleged in said petition that petitioner was placed in jail on the 8th day of July, 1933, and was held in jail on what is known as "investigation," and that he was denied the right to communicate with friends or counsel; that an information charging him with robbery with firearms was filed on the 19th day of July, 1933, and that the county attorney of Comanche county advised him to enter a plea of guilty and that it would go much lighter with him; that on the 20th day of July, 1933, he entered a plea of guilty and was sentenced by

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the district judge of Comanche county, as above set forth. He further alleges in his petition that he was not furnished counsel or permitted to consult with counsel, nor was he advised of his rights before he entered his plea of guilty; that he was young and inexperienced and had never appeared in court, and was incapable of making his own defense because of his youth and ignorance of all court procedure; that the court at no time advised him that he was entitled to counsel before entering his plea of guilty, and that, he did not waive any of his constitutional rights.

As above stated, no evidence was offered by petitioner to in any way substantiate the allegations above set forth. A response was filed by the Attorney General denying all and singular these allegations, and no proof was offered to substantiate them. The burden was upon the petitioner, and he in no way met this burden. Ex parte Scott, 56 Okla. Cr. 206, 36 P.2d 302; Ex parte Murray, 54 Okla. Cr. 437, 23 P.2d 220; Ex parte Johnson, 1 Okla. Cr. 414, 98 P. 461.

For this reason the petition for writ of habeas corpus is denied.