Ex parte Mitchell

Ex parte Mitchell
1945 OK CR 116
163 P.2d 238
81 Okl.Cr. 254
Decided: 10/31/1945
Oklahoma Court of Criminal Appeals

(Syllabus.)

1. Habeas Corpus-Writ of Habeas Corpus May not Be Substituted for An Appeal. The writ of habeas corpus cannot be used to perform the office of a writ of error on appeal, but will be limited to cases in which the judgment and sentence of the court attacked to clearly void.

2. Trial-Failure of Court to Give Instruction on Circumstantial Evidence not Error Where None Requested by Defendant.

Page 255

Where a conviction is had upon both direct and circumstantial evidence, it is not error for the court to fail to give an instruction upon circumstantial evidence where none was requested by defendant.

Proceeding in the matter of the application of John Clifford Mitchell for writ of habeas corpus to be released from the Oklahoma State Penitentiary at McAlester. Writ denied.

Luther P. Lane and Mild Hubler Webb, both of Tulsa, for petitioner.

Randell S. Cobb, Atty. Gen., and Sam H. Lattimore, Asst. Atty. Gen., for respondent.

BAREFOOT, P. J. Petitioner, John Clifford Mitchell, was charged in the district court of Tulsa county with the larceny of an automobile; was tried, convicted and sentenced by the court, on December 4, 1942, to serve a term of 15 years in the State Penitentiary. No appeal was taken from the judgment and sentence, and petitioner is now in the penitentiary, serving this sentence.

On May 10, 1945, petitioner filed in this court his petition for a writ of habeas corpus, seeking his release and discharge from the penitentiary. A demurrer to the petition was filed by the Attorney General on behalf of the warden, as respondent.

As grounds for granting the writ, petitioner alleges that the trial court:

"(a) Failed to instruct upon the defendant's theory of the case.

"(b) Failed to instruct on circumstantial evidence and that therefore he has been deprived of his liberty without due process of law."

Counsel, in his brief, states:

Page 256

"In raising this question which has never been passed on, so far as my research goes, by this Court and I have searched diligently in other Digests and other authorities including Corpus Juris Secundum and American Jurisprudence, I am aware that I am asking this court to do a bit of pioneering.

"I am aware

"1st-That the habeas corpus is not a substitute for a writ of error.

"2nd-That the court will not analyze the evidence to determine his guilt or innocence.

"But-

"This court is committed not only to the proposition that they will determine jurisdiction but they will go further and see if his constitutional rights were denied and if so grant a writ of habeas corpus."

To support this contention, the following cases are cited: Ex parte Farrar, 74 Okla. Cr. 390, 126 P.2d 545; Ex parte Robnett, 69 Okla. Cr. 235, 101 P.2d 645; State ex rel. v. Higgins, 76 Okla. Cr. 321, 137 P.2d 273; Ex parte Davis, 66 Okla. Cr. 271, 91 P.2d 799; Ex parte Barnett, 67 Okla. Cr. 300, 94 P.2d 18; and Ex parte Sullivan, 10 Okla. Cr. 465, 138 P. 815, Ann. Cas. 1916A, 719.

A reading of these cases at once reveals that the facts therein are in no wise comparable to the facts in the instant case. We therefore deem it unnecessary to discuss them.

The fundamental error complained of is that the court did not give an instruction to the jury upon circumstantial evidence, and did not instruct the jury upon defendant's theory of the case. Defendant's theory of the case is not stated. The record attached to the petition

Page 257