Ex parte Collins

Ex parte Collins
1943 OK CR 30
135 P.2d 61
76 Okl.Cr. 163
Decided: 03/10/1943
Oklahoma Court of Criminal Appeals

(Syllabus.)

Rape--Punishment for Attempt to Commit Rape in First Degree.

Original habeas corpus proceeding by Elmer Collins to secure release from the State Penitentiary. Writ denied.

Elmer Collins, in pro per.

Mac Q. Williamson, Atty. Gen., for respondent.

JONES, P. J. The petitioner, Elmer Collins, instituted this original proceeding in habeas corpus to secure his release from confinement in the State Penitentiary at McAlester.

In his verified petition he alleges that he was committed by the district court of Muskogee county to serve a term of 37 years in the State Penitentiary for the crime of attempted rape in the first degree. The petitioner alleges that there is no such crime as attempt to commit

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rape in the first degree, but that he should have been prosecuted for assault with intent to commit rape, under which the maximum punishment would have been five years imprisonment in the State Penitentiary.

Although the petitioner does not so recite, this court takes cognizance of its own records and is familiar with the fact that petitioner appealed his conviction to this court, The same issue was there raised and decided adversely to him. Collins v. State, 59 Okla. Cr. 18, 55 P.2d 790.

It was therein stated:

"Rape in the first degree is punishable by imprisonment in the penitentiary for not less than 15 years. Section 2519, Okla. Stat. 1931, 21 O. S. 1941, § 1115. One convicted of an attempt to commit rape in the first degree is punishable by imprisonment in the State Penitentiary for any term not exceeding one-half of the longest term of imprisonment fixed for a conviction of rape in the first degree. Section, 1822, subd. 1, 21 O. S. 1941 § 42, subd. 1. Under these provisions of the law one convicted of an attempt to commit rape in the first degree may be sentenced to a term of 37 years in the State Penitentiary."

We see no reason to depart from our ruling in the above case.